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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended December 31, 1996
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number: 001-12391
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PANAVISION INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 13-3593063
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
6219 DE SOTO AVENUE
WOODLAND HILLS, CALIFORNIA
(Address of principal executive 91367
offices) (Zip code)
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Registrant's telephone number including area code:
(818) 316-1000
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
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TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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Common Stock New York Stock Exchange
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SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / /
The aggregate market value of the voting stock of the Registrant held by
non-affiliates of the Registrant on March 21, 1997 was approximately $67
million.
As of March 21, 1997, there were 18,155,000 shares of Panavision Inc. Common
Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Portions of the registrant's definitive proxy statement dated March 26,
1997, issued in connection with the Annual Meeting of Stockholders scheduled to
be held on May 13, 1997 are incorporated by reference in Part III of this Form
10-K.
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PANAVISION INC.
Index to Annual Report on Form 10-K
For the Year Ended December 31, 1996
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PART I
Item 1 Business........................................................................................ 5
Item 2 Properties...................................................................................... 13
Item 3 Legal Proceedings............................................................................... 14
Item 4 Submission of Matters to a Vote of Security Holders............................................. 14
PART II
Item 5 Market for Registrant's Common Equity and Related Stockholder Matters........................... 14
Item 6 Selected Financial Data......................................................................... 15
Item 7 Management's Discussion and Analysis of Financial Condition and Results of Operations........... 16
Item 8 Financial Statements and Supplementary Data..................................................... 22
Item 9 Changes in and Disagreements With Accountants on Accounting and Financial Disclosure............ 22
PART III
Item 10 Directors and Executive Officers of the Registrant.............................................. *
Item 11 Executive Compensation.......................................................................... *
Item 12 Security Ownership of Certain Beneficial Owners and Management.................................. *
Item 13 Certain Relationships and Related Transactions.................................................. *
PART IV
Item 14 Exhibits, Financial Statement Schedule and Reports on Form 8-K.................................. 23
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* Incorporated by reference from Panavision Inc. Proxy Statement.
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PART I
ITEM 1. BUSINESS
OVERVIEW
Panavision Inc. (the "Company" or "Panavision") is a leading designer and
manufacturer of high-precision film camera systems, comprising cameras, lenses
and accessories, for the motion picture and television industries. The Company's
camera systems are not available for sale and are rented exclusively through its
domestic and international owned and operated facilities and agent network.
Panavision-Registered Trademark- is recognized in the motion picture and
television industries as the preeminent brand name for cinematography equipment.
Since the Company was founded, Panavision has received two OSCARS and 17 Awards
for Scientific and Technical Achievement from the Academy of Motion Picture Arts
and Sciences. From 1990 through 1995, approximately two-thirds of the Academy
Award nominees for Best Cinematography, and five of the six cinematographers who
have won the OSCAR for Best Cinematography, used Panavision camera systems.
In 1996, nine of the top 10 box office films requiring film cameras,
including MISSION: IMPOSSIBLE, INDEPENDENCE DAY, RANSOM, TWISTER, THE ROCK and A
TIME TO KILL, were filmed with Panavision camera systems. In addition to the
Company's involvement in the motion picture industry, a predominant number of
U.S. prime time episodic, or "series," television programs that are shot on film
use Panavision camera systems, including FRIENDS, SEINFIELD, FRASIER and E.R.
The Company believes that its position as an industry leader results from
its broad range of technologically superior and innovative products, its
longstanding collaborative relationships with filmmakers, the breadth of its
inventory of camera equipment and its dedication to customer service. Panavision
is the only supplier of cinematography equipment that manufactures a complete
camera system incorporating its own range of proprietary prime and zoom lenses,
the most critical components of a camera system. The Company continuously
addresses the technical and creative needs of its customers by designing and
manufacturing unique accessories that in many instances have become the industry
standard.
In addition to manufacturing and renting camera systems, the Company also
rents lighting, lighting grip, power distribution, generation and related
transportation equipment through Lee Lighting Limited ("Lee Lighting"), the
largest lighting rental company in the United Kingdom, as well as through two
owned and operated facilities in Orlando and Toronto. The Company also
manufactures and sells lighting filters and other color-correction and diffusion
filters through Lee Filters.
Panavision Inc. was incorporated in Delaware in 1990. Predecessors of the
Company have been engaged in the design and manufacturing of cinematography
equipment since 1954. The Company's principal executive office is located at
6219 De Soto Avenue, Woodland Hills, California 91367, and its telephone number
is (818) 316-1000.
THE RECAPITALIZATION
The Company is a holding company that conducts its business through
Panavision International, L.P. ("PILP") and its subsidiaries. In May 1996, the
Company effected a recapitalization (the "Recapitalization") pursuant to which,
for a total of $126.1 million in cash, the Company acquired all of the equity
interests in PILP it did not previously own and retired all of PILP's
outstanding debt securities. Prior to the Recapitalization, certain
non-controlling partners owned 70% of the non-voting Class A and 30% of the
voting Class B limited partnership units of PILP. The non-controlling partners
consisted of members of the bank group that provided PILP's prior credit
facility and were not otherwise affiliated with the Company, PILP or Warburg,
Pincus Capital Company, L.P. (together with its wholly owned subsidiaries,
"Warburg, Pincus"). They acquired their interest in PILP in connection with
PILP's prior credit facility. As a result of
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the Recapitalization, the Company owns 100% of the outstanding interests of PILP
and Warburg, Pincus and management owned 90% and 10%, respectively, of the
common stock of the Company prior to the initial public offering.
The Recapitalization was financed by (i) borrowings of $110.0 million under
a new credit facility, (ii) funds from working capital and (iii) loans from
Warburg, Pincus and management. The loans consisted of subordinated demand notes
of $11,608,000, $580,400, $165,829 and $82,914 issued to Warburg, Pincus and
Messrs. Scott, Farrand and Marcketta, respectively. These notes were repaid
subsequent to the initial public offering. In addition, effective July 1, 1996,
Warburg, Pincus contributed substantially all of the assets of Lee Lighting to
the Company as a capital contribution in the amount of $8.0 million and made an
additional capital contribution of $0.8 million in cash. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources" for a description of the credit
facility.
INITIAL PUBLIC OFFERING
On November 20, 1996, the Company completed its initial public offering of
4,025,000 shares of common stock (the "Common Stock") at a price of $17 per
share which raised net proceeds of $61.6 million. Of the net proceeds from the
offering, $47.0 million were used to repay bank debt and approximately $12.9
million were used to repay subordinated notes and accrued interest payable to
Warburg, Pincus and Messrs. Scott, Farrand and Marcketta. The balance of the net
proceeds was maintained as working capital for ongoing operations.
CAMERA RENTAL MARKETS
Worldwide consumer demand for filmed entertainment has continued to provide
the motion picture and television industries with steady growth over the past
several years, and the Company expects these industries to continue to grow for
the foreseeable future. The motion picture industry is comprised of feature
films produced by major studios and independent producers; the television
industry is comprised of commercials, episodic or series programs and movies of
the week.
The Company rents its products through its 10 owned and operated facilities
in the United States, Canada and the United Kingdom, as well as through an agent
network in the United States, Europe, Asia, Australia, South Africa and Mexico.
In 1996, approximately two-thirds of the Company's camera rental revenue was
derived from productions based in the United States and the remainder was from
international rentals, primarily in the United Kingdom and Europe.
FEATURE FILMS
The number of major studio feature films produced in North America increased
from approximately 104 in 1992 to approximately 124 in 1996. The number of
independent feature films produced in North America increased from approximately
246 in 1992 to approximately 367 in 1996. The Company estimates that during this
period feature film production activity in the United Kingdom and Europe also
increased, with approximately 500 feature film productions in 1996. Major studio
feature films are typically large-budget productions with camera rental budgets
that require greater depth of product and experienced customer service
personnel. The Company expects that the production of large-budget action films
will continue due in large part to their success in the international theater,
television and home video markets. In 1996, 31% of the Company's total revenue
and 46% of its camera rental revenue were generated from feature films. In
addition, the Company estimates that its camera rental revenue from feature
films has grown 63% since 1992. The Company believes the feature film market,
particularly independent productions, offers significant growth opportunities.
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COMMERCIALS
Although commercial productions generally last for only one to seven days,
daily rental rates for camera systems are equivalent to feature film rental
rates and represent a significant part of the camera equipment rental market.
Many of the creative people involved in the filming of commercials seek to
distinguish their products by using innovative techniques requiring
technologically advanced equipment-- the ability to achieve a unique "look,"
which the Company believes can, in many cases, only be achieved by using
Panavision products. Many feature film directors and cinematographers began
their careers filming television commercials and continue to be so involved. As
such, identification with a brand name product at this first stage of a
filmmaker's professional development often gives rise to beneficial long-term
relationships in the industry. In 1996, approximately 14% of the Company's total
revenue and 20% of its camera rental revenue were generated from commercials.
The Company estimates that its camera rental revenue from commercials has grown
61% since 1992. The Company believes this market offers significant
opportunities for growth.
EPISODIC TELEVISION
The episodic or series television market in North America is comprised
primarily of dramas, situation comedies and action programs produced on film
which are aired in both prime and non-prime time slots. These programs are
broadcast on the four major television networks as well as on the WB, UPN and
cable networks. The number of episodic shows produced on film has increased by
approximately 91% since 1992, resulting primarily from the advent of new
broadcast networks and increased original programming on cable networks. Over
the same period, the Company believes that the use of film in episodic
television has increased over videotape because of a number of factors. Film is
an excellent storage or archival medium and may be digitally transferred to
other media, such as the evolving high definition television technologies, with
greater resolution than videotape. The image quality that film offers is very
important to television programs that will be syndicated into many markets. In
contrast, videotape may not be fully compatible with high definition television
and may deteriorate more rapidly over time.
In 1996, approximately 14% of the Company's total revenue and approximately
21% of its camera rental revenue were generated from episodic television. The
Company estimates that its camera rental revenue from episodic television has
grown 75% since 1992. The Company believes it will continue to make inroads in
this market as a result of new network programming requirements and innovative
Panavision products such as the 3-Perf-Registered Trademark- System, the
Pedestal Camera System and a 2,000-foot film magazine.
MOVIES OF THE WEEK
In addition to episodic television, there are also movies of the week shot
for network and cable television. The number of movies of the week productions
in North America has increased from approximately 185 in 1992 to approximately
250 in 1996. However, due to the relatively low budgets associated with these
productions, overall cost is a major factor in the selection of the camera
equipment that is used and, accordingly, the dollar size of this market is
relatively small.
In 1996, approximately 4% of the Company's total revenue and 5% of its
camera rental revenue were generated from movies of the week. The Company
estimates that its camera rental revenue from movies of the week has grown 23%
since 1992. While the Company will continue to serve this market, given its size
and price sensitivity, the Company expects to focus on higher-budget
productions.
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PRODUCTS
RESEARCH AND PRODUCT DEVELOPMENT
The Company is in the process of expanding its research and development
group, which currently comprises approximately 37 mechanical, software,
electronic and optical engineers, draftsmen and machinists. Additionally, the
research and development group has a dedicated machine shop that manufactures
prototype equipment. These internal capabilities enable the Company to develop
proprietary technology in collaboration with filmmakers to address their unique
requirements.
The Company has long been a leader in the research and development of film
camera lenses. Since the first Panavision lens was introduced in 1957, the
Company has introduced many innovative spherical and anamorphic lenses,
including the PRIMO-Registered Trademark- series which won Academy Awards in
1990, 1991, 1994 and 1995. During 1997, the Company expects to complete the
development of a new macro close-focus, wide-angle zoom lens. This new lens is
designed to address the need within the commercial market for a compact lens
with the ability to operate in low light environments and maintain focus at
extremely close ranges (e.g., table-top or other close-up work). In 1997, the
Company also plans to introduce a new sync-sound camera which is lighter and
quieter than current Panavision cameras and incorporates enhanced viewfinding
and video monitoring capabilities. In addition, the Company is in the process of
developing a digital video assist device.
Research and development expenses for the years ended 1996, 1995 and 1994
were $4.3 million, $3.0 million and $2.5 million, respectively.
CAMERA SYSTEMS
The Company is the only provider of camera systems with an integrated design
that provides customers with compatible products that are available worldwide.
Each camera package is comprised of a number of camera systems, each of which
includes a camera, lenses and accessories. A cinematographer's needs may include
a sync-sound camera, such as the Platinum Panaflex-Registered Trademark- and a
high-speed Panastar-Registered Trademark- camera. Each camera's rental price
includes a variety of accessories such as eyepieces, viewfinders, cables,
brackets and grips.
CAMERAS. There are two basic types of motion picture cameras--Synchronous,
or "sync-sound," and Mit Out Sound ("MOS"). Sync-sound cameras are used to shoot
pictures while recording dialogue. MOS cameras are used primarily to shoot
high-speed footage and special effects and may also be used as backup cameras in
situations where dialogue is not being recorded. The Company's camera inventory
consists of both sync-sound and MOS cameras with various features and at a range
of prices. While the majority of the Company's sync-sound cameras are 35mm
cameras, the Company also manufactures 16mm cameras, which are used primarily on
episodic television shows, and 65mm cameras, which are used primarily for
special effects and special venue presentations. Panavision has consistently set
industry standards in the design and refinement of cinematography equipment.
The Company's inventory also includes a limited number of non-Panavision
cameras which are used to supplement the Company's product line. Due to its
ability to purchase non-Panavision cameras if there is a business need to do so,
the Company is able to compete with independent renters of cinematography
equipment on the same level and with the same equipment. Its competitors, on the
other hand, do not have a corresponding ability, as Panavision equipment is not
available to rental companies other than the Company's agents.
LENSES. Panavision develops, designs and manufactures its own prime (fixed
focal length) and zoom lenses, the most critical component affecting picture
quality and an important consideration for the filmmaker. For many years, the
Company specialized in anamorphic lenses, which are used for the wide-screen
movie format. While the Company remains the world's leading supplier of these
lenses, in 1985 a
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strategic decision was made to design and develop a new series of prime and zoom
lenses specifically for cinematography applications. Accordingly, the Company
created a line of revolutionary spherical lenses for the non-wide screen format,
producing its proprietary PRIMO PRIME-Registered Trademark- and PRIMO
ZOOM-Registered Trademark- lenses. The PRIMO-Registered Trademark- lenses have
performance characteristics that exceed the other lenses available in the
marketplace.
ACCESSORIES. In order to provide its customers with a fully integrated
camera system, the Company frequently introduces new camera accessories and
currently offers an extensive range of products requested by and developed in
conjunction with filmmakers. Certain accessories may reduce overall production
costs by lowering the labor intensiveness of the production process and thereby
decreasing the shooting days. Moreover, an accessory product often achieves such
widespread acceptance among the Company's customers that the Company
incorporates it into the base camera package, thereby increasing the overall
package price.
MANUFACTURING AND ASSEMBLY
The Company manufactures and assembles its products in Woodland Hills,
California. The Company develops and designs all the critical components for its
camera systems, including the camera movement and lens. An entire camera system
consists of hundreds of parts, each carefully produced, assembled and tested.
The manufacturing process takes up to four months and primarily involves the
fabrication and assembly of camera and lens components by over 100 highly
skilled workers, each of whom generally has an area of specialization. Following
the assembly process, each camera system is rigorously tested to achieve the
high standard of performance that customers expect from Panavision.
While the Company manufactures most of the components internally, certain
components and subassembly work, including glass grinding, lens element
polishing and die casting, are outsourced to selected suppliers. The Company has
developed long-term relationships with its significant suppliers and believes
that they will continue to supply high-quality products in quantities sufficient
to satisfy its requirements. Since certain components, particularly the lens
element, require long lead times, precise production schedules are critical.
Inventory levels are determined based on input from marketing, operations and
the agent network. The Company maintains a fairly constant production schedule
in order to utilize efficiently its resources and service its customers'
requirements.
MARKETING AND CUSTOMER SERVICE
The principal decisionmakers in the selection of the camera packages are
cinematographers, directors and producers, who view their cameras and related
equipment as critical artistic tools. Camera packages typically comprise a very
small percentage of a production budget. Accordingly, absent budget constraints,
the selection of equipment is driven by its suitability, technological
capabilities and reliability, as well as by the degree to which the manufacturer
or renter is able to rapidly service the technical needs of the filmmaker, both
before and during film production.
The Company's skilled sales representatives have established close working
relationships with numerous filmmakers. To cultivate these relationships, the
Company assigns each filmmaker a sales representative who possesses the
experience and skills that match the needs of the filmmaker. Based on
discussions with the filmmaker, the sales representative recommends a camera
package tailored to achieve the filmmaker's desired visual effect and meet the
production budget. In addition, sales representatives provide further advice and
support by visiting film production sites. As a result of providing high-quality
customer service, many of the Company's representatives have been working with
the same filmmakers throughout their careers and in many instances the
collaborative effort with the filmmaker has led to new product designs.
After preliminary decisions have been made with respect to the proper camera
systems, the camera equipment will be delivered to a preparation room reserved
for that filmmaker. The filmmaker, together
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with his own and Panavision's representatives, may then inspect the equipment as
well as test and experiment with it at the facility's prep floor, sound stage,
film studio and screening room.
DISTRIBUTION
Camera packages are rented to the motion picture and television industries
through rental houses owned and operated by the manufacturer as well as by
independent agents. These rental houses serve as a single point of contact for
the cinematographers and often provide services including maintenance and
technical advice. Panavision is the only manufacturer to have a significant
portion of its revenue generated through owned and operated rental houses,
primarily because of the Company's choice not to sell its equipment. The Company
does not currently intend to begin selling its camera systems.
Panavision owns and operates camera rental facilities domestically in
Woodland Hills and Hollywood, California, Orlando, Florida and Wilmington, North
Carolina and internationally, in Toronto and Vancouver, Canada, Dublin, Ireland
and London (two) and Manchester, United Kingdom. The Orlando and Toronto
facilities also provide lighting, lighting grip and power distribution and
generation equipment.
In addition to its owned and operated facilities, the Company serves its
customers through a network of domestic and international third-party agents who
are responsible for the rental of the Company's equipment in locations that are
not serviced by the owned and operated facilities. Agents pay approximately 60%
of their rental revenue to the Company and retain the balance, which is charged
as a commission expense in the Company's statement of income. The Company uses
11 third-party agents to facilitate the rental of its products, accounting for
approximately 13% of the Company's revenue in 1996. All of the Company's agents
are well-versed in the use of Panavision equipment and are supported by the
Company's technical staff.
The Company's domestic third-party agent network includes agents in Atlanta,
Chicago, Dallas, New York and San Francisco. In addition, the Company has an
international agent network that includes agents in Canada, Mexico, France,
Italy, Spain, Australia, Hong Kong, Japan and South Africa. The Hong Kong agent
has offices in mainland China, while the Australian agent also maintains an
office in New Zealand.
For information as to the Company's operations in different geographical
areas, see Note 10 of Notes to the Consolidated Financial Statements of the
Company.
COMPETITION
The market for high-precision cinematography equipment is highly
competitive, primarily driven by technology, customer service and, to a lesser
extent, price. As a manufacturer of cinematography equipment, the Company's
primary competitors are Arriflex, based in Munich, Germany, and Moviecam, based
in Vienna, Austria. Both of these companies manufacture only cameras and certain
accessories, primarily for sale to rental houses and individuals, who are not
the end users. Because Panavision manufactures lenses, cameras, and a full range
of accessories, has close relationships with filmmakers and has in-house design
and manufacturing capabilities, the Company believes that it is better able to
provide the innovative camera systems demanded by its customers.
As a renter of cinematography equipment, the Company competes with numerous
rental facilities which must purchase their equipment from other manufacturers
and then rent that equipment to their customers. While the overall rental
business is price competitive and subject to discounting, the Company has chosen
to compete on the basis of its large inventory base, technologically advanced
proprietary products, broad product line, extensive sales and marketing force
and commitment to customer service. The Company believes that, as the
manufacturer, it is able to respond to many user requests on shorter notice than
its rental competitors. In addition to its existing competitors, the Company may
encounter competition from new competitors, as well as from new types of
equipment.
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LIGHTING RENTAL
The Company rents lighting, lighting grip, transportation and distribution
equipment and mobile generators used in the production of feature films,
television programs and commercials, outside broadcasts and other events from
its operations located in the United Kingdom, Canada and Florida. In addition,
the Company sells consumable products including lighting filters, light bulbs
and gaffer tape, which are used in all types of production. Effective July 1,
1996, the Company acquired Lee Lighting, which for the entire calendar year of
1996 had revenue of approximately $22.4 million. The Company's other lighting
rental operations in Canada and Florida had combined 1996 revenue of
approximately $3.9 million.
LEE LIGHTING
Lee Lighting is the largest lighting rental operation in the United Kingdom.
Lee Lighting purchases lighting equipment, lighting grip equipment and
generators from independent manufacturers to maintain and build its rental asset
base. Lee Lighting currently has the largest inventory of lampheads, the core
element of lighting equipment used by filmmakers in all areas of the industry,
in the United Kingdom. This large rental asset base and Lee Lighting's
experienced management and electricians allow it to service a number of films
which may be shooting concurrently. Lee Lighting operates lighting rental
operations in London, Bristol, Manchester and Glasgow, which have their own
rental inventories. From these four locations, Lee Lighting is able to service
any production in England, Wales or Scotland. In addition, Lee Lighting
maintains a rental base at Shepperton Studios, the second largest studio complex
in the United Kingdom for the production of feature films.
Lee Lighting also supplies equipment to any U.K.-based production crew which
desires to shoot all or part of a production in Europe, South America or Africa.
Typically, Lee Lighting does not service productions based outside of the United
Kingdom, except occasionally in Ireland. Recently, Lee Lighting has supplied the
entire lighting needs of such major feature films as FOUR WEDDINGS AND A
FUNERAL, JUDGE DREDD, ROB ROY, MISSION: IMPOSSIBLE, 101 DALMATIONS, EVITA and
THE SAINT.
COMPETITION. Lee Lighting services both the motion picture and television
industries, including studio programs, outside broadcasts, commercials and
made-for-television movies (equivalent to movies of the week). These markets
require a similar range of lighting products and related support equipment;
however, feature films and episodic television programs generally require larger
equipment packages than commercials. Equipment packages are frequently
determined by the producer, director or cinematographer, who may desire a
specific type of image or lighting effect. Although Lee Lighting is the largest
lighting rental company in the United Kingdom, the lighting rental market is
price competitive.
COMPETITIVE STRENGTHS. The Company believes Lee Lighting is well-positioned
in the U.K. lighting rental industry because of the following competitive
strengths:
REPUTATION FOR OUTSTANDING SERVICE. Over the last two decades Lee Lighting
has developed a reputation among U.K. producers of feature films, television
programs and commercials for providing outstanding service. Lee Lighting is
the only lighting company in the United Kingdom which supplies its own
electricians in connection with the rental of its equipment. Many of the
major U.K. feature film producers regularly use Lee Lighting's equipment and
the services of its skilled gaffers and electricians. This service force is
on call 24 hours a day, seven days a week and is supplemented by freelance
labor when required. This affords Lee Lighting the competitive advantage of
providing customers with a higher quality and more consistent service,
critical to success in capturing feature film work. Many of Lee Lighting's
technicians are considered to be among the best in the film industry and
their services are requested by some of the world's leading
cinematographers.
DEPTH OF INVENTORY. Lee Lighting maintains the largest rental asset base of
lighting equipment, transport, mobile generators and power distribution
equipment in the United Kingdom. This permits
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Lee Lighting to service as many as 15 feature films at the same time. The
Company believes that its extensive inventory of equipment provides it with
an important competitive advantage. Its substantial inventory enables Lee
Lighting to service projects with large-scale equipment and personnel
requirements, such as feature films and outside broadcasts, while still
maintaining sufficient capacity to service other projects simultaneously.
Lee Lighting believes that its position as the inventory market leader makes
it the only source for certain large-scale projects. Lee Lighting intends to
add to its rental asset base while actively pursuing opportunities to
increase its share in the U.K. feature film market as well as the television
market, including commercials and television broadcasts.
EXPERIENCED MANAGEMENT. Lee Lighting currently employs senior management
who have developed important contacts in the U.K. motion picture and
television industries over many years. Under this management there is a
sizable field force of gaffers and electricians who work exclusively for Lee
Lighting.
LEE FILTERS
Lee Filters is a manufacturer of light control media for the motion picture,
television and theater industries. Sales of filters or gels used by lighting
directors to control or correct lighting conditions during productions comprise
80% of Lee Filters' business. The balance consists of the sale of photographic
filters and related products. In 1996, Lee Filters' revenue was approximately
$12.3 million.
Lee Filters' lighting filters are available in a wide range of colors and
applications. These lighting filters are made either from polyester or
polycarbonate film purchased from U.K. and European petrochemical companies. Lee
Filters' range of light control filters includes tungsten conversion, daylight
conversion, arc correction, fluorescent, diffusion and ultraviolet grades. The
film base is impervious to water, is totally transparent and has a high melting
point, making it ideal for the manufacture of filter systems. Rolls of film are
coated on both sides with specially prepared lacquers which give them exactly
the color or light management properties demanded by the user. The color
formulas are proprietary to Lee Filters and are computer filed to ensure exact
reproduction from one batch to the next. Lee Filters also makes stills
photographic resin and polyester filters and a camera filter holder system for
amateur stills photographers, and produces bellows for stills camera
manufacturers.
Lighting filter distribution is handled primarily through a network of
third-party dealers who have been selected because of their specific knowledge
of the filters' market in their respective countries. Approximately 50% of Lee
Filters' sales are in the United Kingdom and Europe. In the United Kingdom, Lee
Filters sells on a direct basis to end users and rental houses as well as to
distributors and dealers. In Europe, Lee Filters has distributors in France,
Germany, Italy, Spain, Benelux, Portugal, Scandinavia and Switzerland.
Approximately 35% of Lee Filters' sales are generated in North America where
it has established distribution operations in Burbank, California and Teterboro,
New Jersey to service U.S. dealers. A third-party distributor has been
established in Toronto to serve the Canadian market. The remaining 15% of sales
are generated primarily in Japan, Hong Kong, Singapore and Australia.
COMPETITION
Lee Filters has one principal competitor and several smaller competitors.
Some of these competitors are contract processors or coaters who supply the end
user through other distributors, and some are sales companies which usually
purchase and resell filters. Its principal competitor offers a full range of
filters, some of which are made in-house and some of which are purchased.
12
<PAGE>
COMPETITIVE STRENGTHS
WIDE RANGE OF FILTER TYPES AND COLORS. Lee Filters believes it manufactures
more types of filters and a wider range of colors than its competitors and
is the only company which does not sell on a private label basis to others.
Lee Filters does not resell filters made by other manufacturers, thereby
enabling it to maintain better quality control.
LARGE INVENTORY. Lee Filters maintains a sizable inventory of filters in
three locations in order to provide same-day service to production
companies. This is especially important in servicing feature films while on
location. Quality and availability of product are the principal reasons Lee
Filters is a preeminent supplier to the U.K., European and U.S. feature film
industry.
Lee Filters intends to expand its position in lighting filters for the film,
television and theater markets by improving its distribution and dealer
network, particularly in North and South America and in the Far East. In
addition, it plans to increase its product offerings on a selective basis to
the stills photography market in the United Kingdom and the United States.
INTELLECTUAL PROPERTY
The Company owns or otherwise has rights to patents and trademarks used in
conjunction with the manufacture and rental of its products, including but not
limited to Panavision-Registered Trademark-, PRIMO ZOOM-Registered Trademark-,
Panaflex-Registered Trademark-, Panahead-Registered Trademark-,
3-Perf-Registered Trademark- and Panastar-Registered Trademark-. Proprietary
protection for the Company's products and know-how is important to the Company's
business. Accordingly, the Company's policy is to prosecute and enforce its
patents and proprietary technology. The Company intends to continue to file
patent applications to protect technology, inventions and improvements that are
considered important to the development of its business. In addition, the
Company relies upon trade secrets, know-how, continuing technological innovation
and licensing opportunities to develop and maintain its competitive position. To
the Company's knowledge, there are no claims or suits threatened, pending or
contemplated against it for infringement of any patents or trademarks.
ENVIRONMENTAL MATTERS
The Company's manufacturing operations are subject to foreign, federal,
state and local environmental laws and the Company has made, and will continue
to make, expenditures to comply with those laws. In addition, environmental laws
can impose liability on present and former real property owners or operators,
without regard to fault or legality of the original actions, for the cost of
cleaning up or removing contamination caused by hazardous or toxic substances.
The Company expects to spend approximately $2.0 million at its Lee Filters'
Andover, England facility during 1997 and 1998 to comply with anticipated air
emissions requirements in the United Kingdom. Although no other material capital
or operating expenditures relating to environmental controls or other
environmental matters are currently anticipated, there can be no assurance that
the Company will not be required to make material expenditures in the future
relating to environmental matters.
EMPLOYEES
As of December 31, 1996, the Company had a total of approximately 805 full
time employees, consisting of 380 employees based in the United States, 59
employees based in Canada, 358 employees based in the United Kingdom and 8
employees based in France. The Company is not a party to any collective
bargaining agreements. The Company believes that its relationships with its
employees are good.
ITEM 2. PROPERTIES
The Company's headquarters and principal manufacturing facility are located
at its 150,000 square-foot facility in Woodland Hills, California. In addition,
the Company operates rental facilities in Woodland
13
<PAGE>
Hills and Hollywood, California, Orlando, Florida and Wilmington, North
Carolina. To service its international markets, the Company operates rental
facilities in Toronto and Vancouver, Canada, Dublin, Ireland and London (two)
and Manchester, England. Lee Lighting operates rental facilities in London,
Bristol and Manchester, England and Glasgow, Scotland. Lee Filters'
manufacturing facility is located in Andover, England. All of the Company's
facilities are leased, with the exception of two of the Company's greater London
facilities and its facility in Glasgow, which are owned.
ITEM 3. LEGAL PROCEEDINGS
The Company is not engaged in any legal proceeding other than ordinary
routine litigation incidental to its business. Panavision does not believe that
any such proceedings currently pending will have a material adverse effect on
its business or financial condition.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On November 19, 1996, the Company requested the unanimous written consent of
the stockholders holding 100% of its voting capital stock to amend its
Certificate of Incorporation in connection with its initial public offering. On
November 18, 1996, the Company also requested the unanimous written consent of
the stockholders holding 100% of its voting capital stock to ratify the 1991
offer, sale and issuance of the shares of Common Stock to Warburg, Pincus
Capital Company, L.P. pursuant to a Reorganization Agreement executed on June 1,
1991 by and among PILP, Panavision Incorporated, Lee International Limited, Lee
Lighting America Ltd., Lee International, Inc. (formerly known as Lee Panavision
International, Inc.), MRI International Limited, Hadenfar Limited and Panavision
Europe Limited.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is listed on the New York Stock Exchange ("NYSE")
under the symbol "PVI." As of March 21, 1997, there were approximately 1,875
holders of the Company's Common Stock comprised of 37 record holders and 1,838
beneficial owners.
Since the Company's Common Stock began trading on the NYSE after its initial
public offering in November 1996, the high, low and end of year closing sales
prices per share have been $24, $20 and $20 3/4, respectively, through December
31, 1996.
The Company has never paid a cash dividend on its Common Stock and does not
anticipate paying any cash dividends on the Common Stock in the foreseeable
future. The current policy of the Company's Board of Directors is to retain
earnings to finance the operations and expansion of the Company's business. In
addition, the Company's existing credit agreement restricts the Company's
ability to pay dividends to its stockholders. See Note 6 of Notes to the
Consolidated Financial Statements of the Company.
14
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data has been derived from the Consolidated
Financial Statements that have been audited by Ernst & Young LLP, independent
auditors. The information set forth below is not necessarily indicative of
results of future operations, and should be read in conjunction with Item 7
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the consolidated financial statements and related notes thereto
included elsewhere in this Form 10-K.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1996(1) 1995(2) 1994 1993 1992
---------- --------- --------- --------- ---------
<CAPTION>
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue.......................................................... $ 124,638 $ 95,328 $ 77,100 $ 66,710 $ 62,560
Cost of Sales.................................................... 59,473 44,369 40,995 36,432 38,005
---------- --------- --------- --------- ---------
Gross margin..................................................... 65,165 50,959 36,105 30,278 24,555
Selling, general and administrative expenses..................... 30,688 28,486 19,210 18,875 21,648
Research and development expenses................................ 4,310 2,986 2,442 2,272 2,000
---------- --------- --------- --------- ---------
Operating income................................................. 30,167 19,487 14,453 9,131 907
Net interest expense............................................. (7,435) (5,616) (5,318) (5,229) (5,453)
Net other income (expense) (3)................................... (1,425) 415 665 183 (1,655)
---------- --------- --------- --------- ---------
Income (loss) before non-controlling partners' interest in PILP
and income taxes............................................... 21,307 14,286 9,800 4,085 (6,201)
Non-controlling partners' interest in PILP(4).................... (4,500) (7,348) (879) (327) (958)
---------- --------- --------- --------- ---------
Income (loss) before income taxes................................ 16,807 6,938 8,921 3,758 (7,159)
Income tax (provision) benefit................................... (3,536) (1,375) (1,843) (453) 686
---------- --------- --------- --------- ---------
---------- --------- --------- --------- ---------
Net income (loss)................................................ $ 13,271 $ 5,563 $ 7,078 $ 3,305 $ (6,473)
---------- --------- --------- --------- ---------
---------- --------- --------- --------- ---------
Net income (loss) per common share............................... $ .84 $ .36 $ .46 $ .22 $ (.42)
---------- --------- --------- --------- ---------
---------- --------- --------- --------- ---------
Shares used in computation....................................... 15,733 15,277 15,277 15,277 15,277
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- ----------
BALANCE SHEET DATA:
Total assets......................................... $ 176,746 $ 165,751 $ 149,707 $ 140,075 $ 138,697
Total current liabilities............................ 27,214 25,162 18,230 13,419 13,017
Long-term debt....................................... 55,000 124,678 127,000 131,000 134,500
Stockholders' equity (deficiency).................... 93,018 6,456 922 (6,706) (10,481)
</TABLE>
- ------------------------
(1) Includes operating results of Lee Lighting Limited since its acquisition
effective July 1, 1996.
(2) Includes operating results of Panavision Canada Corporation, a former agent,
since its acquisition effective January 20, 1995.
(3) In the fourth quarter of 1996, deferred financing costs in the amount of
$1.8 million were written off.
(4) In the Recapitalization, the Company acquired the non-controlling partners'
interest in PILP effective May 8, 1996. Accordingly, there will be no
further allocation of PILP's income to non-controlling partners.
15
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
INTRODUCTION
The Company is a holding company that owns 100% of the non-voting Class A
and voting Class B limited partnership units of PILP. All business operations of
the Company are conducted within PILP. In May 1996, the Company effected its
Recapitalization, pursuant to which all of PILP's outstanding debt and equity
securities were acquired. Prior to the Recapitalization, the non-controlling
partners owned 70% of the non-voting Class A and 30% of the voting Class B
limited partnership units. However, since the non-controlling partners had a
deficit in their capital accounts at the formation of PILP, such deficit was
allocated entirely to the Company as the general partner of PILP. In addition,
PILP's losses for 1991 and 1992 and distributions made by PILP to various taxing
authorities on behalf of the non-controlling partners were charged to the
Company's capital account. In 1993, 1994 and 1995, as PILP generated earnings
before the non-controlling partners' interest, a portion of their interest in
those earnings was allocated to the Company's capital account to restore the
proportionate amount of the non-controlling partners' deficits and distributions
for taxes previously charged to the Company's capital account. The significant
increase in the non-controlling partners' interest in PILP from $0.9 million in
1994 to $7.3 million in 1995 reflects the substantial completion of the
restoration of the Company's capital account.
After the Recapitalization, no additional provision for non-controlling
partners' interest in PILP will be made in the Company's statement of income.
In July 1996, the Company acquired Lee Lighting, the largest lighting rental
company in the United Kingdom. The acquisition was accounted for using the
purchase method of accounting and therefore, only the results of operations of
Lee Lighting since the acquisition date are included in the consolidated results
of operations of the Company.
RESULTS OF OPERATIONS
The following discussion and analysis includes the Company's consolidated
historical results of operations for 1996, 1995 and 1994.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Camera rental revenue increased $14.7 million, or 19.6%, to $89.8 million
for the year ended December 31, 1996 from $75.1 million for the year ended
December 31, 1995. The increase resulted primarily from the rental of newly
manufactured camera systems, specialty lenses and accessories to supply the
increased demand in the North American and international feature film and
commercial markets as well as the North American episodic television market.
Revenue also increased as a result of a small increase in rental rates.
Lighting rental revenue increased $10.8 million to $14.9 million for the
year ended December 31, 1996 from $4.1 million for the year ended December 31,
1995. The increase was primarily due to the acquisition of Lee Lighting in July
1996.
Sales and other revenue increased $3.8 million, or 23.6%, to $19.9 million
for the year ended December 31, 1996 from $16.1 million for the year ended
December 31, 1995. The increase was primarily due to increased sales of Lee
Filters through the Company's U.S. distribution operation, which contributed
revenue of approximately $4.4 million.
Cost of camera rental increased $4.6 million, or 14.1%, to $37.3 million for
the year ended December 31, 1996 from $32.7 million for the year ended December
31, 1995. The increase was primarily due to the increase in maintenance, service
and labor costs required to service additional rental customers. Additionally,
third-party camera agent rental commissions increased as a result of an increase
in third-party agent revenue around the world.
16
<PAGE>
Cost of lighting rental increased $8.1 million to $9.8 million for the year
ended December 31, 1996 from $1.7 million for the year ended December 31, 1995.
The increase was primarily due to the acquisition of Lee Lighting in July 1996.
Cost of sales and other increased $2.4 million, or 24.0%, to $12.4 million
for the year ended December 31, 1996 from $10.0 million for the year ended
December 31, 1995. The increase was primarily due to the increase in sales of
Lee Filters and a small increase in the cost of sales in the United Kingdom.
Gross margin increased $14.2 million, or 27.8%, to $65.2 million for the
year ended December 31, 1996 from $51.0 million for the year ended December 31,
1995. The increase was primarily due to the factors discussed above.
Selling, general and administrative expenses increased $2.2 million, or
7.7%, to $30.7 million for the year ended December 31, 1996 from $28.5 million
for the year ended December 31, 1995. The 1996 results include a $1.8 million
increase in costs related to the acquisition of Lee Lighting. Corporate general
and administrative expenses increased $0.9 million as a result of non-cash
compensation for options and shares of Common Stock issued to certain members of
senior management. Selling, general and administrative expenses at the other
operations decreased by a net $0.4 million as a result of non-recurring charges
in 1995 of $1.8 million, relating to an early lease termination for the
Company's former corporate headquarters, and $1.7 million, for the write-down of
the carrying value of certain real property owned by the Company's U.K. rental
operation. These decreases were partially offset by a $3.1 million increase in
selling, distribution and other general and administrative expenses to support
the increase of business activity at the Woodland Hills, Hollywood, U.K. and Lee
Filters operations.
Research and development expenses increased $1.3 million, or 43.3%, to $4.3
million for the year ended December 31, 1996 from $3.0 million for the year
ended December 31, 1995. The increase related to additional personnel costs
incurred in connection with the development of a new sync-sound camera system
and a digital video assist device. The Company expects research and development
costs to continue to increase as the Company hires additional personnel to
develop new specialty lenses and accessory products targeted primarily to
service the feature film and commercial markets.
Operating income increased $10.7 million, or 54.9%, to $30.2 million for the
year ended December 31, 1996 from $19.5 million for the year ended December 31,
1995. The increase was primarily due to the factors discussed above.
Net interest expense increased $1.8 million, or 32.1%, to $7.4 million for
the year ended December 31, 1996 from $5.6 million for the year ended December
31, 1995. The increase was primarily due to an increase in interest bearing debt
and a decrease in interest income due to the decrease in cash resulting from the
Recapitalization.
Net other expense increased $1.8 million to $1.4 million for the year ended
December 31, 1996 from net other income of $0.4 million for the year ended
December 31, 1995. The increase was due to a one time non-cash charge of $1.8
million to write off deferred financing issuance costs incurred in connection
with the Recapitalization.
Income before income taxes increased $9.9 million, or 143.5%, to $16.8
million for the year ended December 31, 1996 from $6.9 million for the year
ended December 31, 1995. The increase was primarily due to the factors discussed
above as well as a $2.8 million decrease in the charge for the non-controlling
partners' interest to $4.5 million in 1996 from $7.3 million in 1995 resulting
from the purchase by the Company of the non-controlling partners' interest in
the Recapitalization.
The effective tax rates for years ended December 31, 1996 and 1995 were
21.0% and 19.8%, respectively, and were lower than the statutory rate
principally due to the reduction in the valuation allowance for deferred tax
assets.
17
<PAGE>
Net income increased $7.7 million, or 137.5%, to $13.3 million for the year
ended December 31, 1996 from $5.6 million for the year ended December 31, 1995.
The increase was primarily due to the factors discussed above.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994
Camera rental revenue increased $13.5 million, or 21.9%, to $75.1 million
for the year ended December 31, 1995 from $61.6 million for the year ended
December 31, 1994. The increase resulted primarily from the rental of newly
manufactured camera systems and specialty lenses to supply the increased demand
in the North American and United Kingdom feature film and commercial markets as
well as the North American episodic television market. The acquisition of
Panavision Canada in January 1995 resulted in increased camera rental revenue of
$3.7 million during the year. Revenue also increased as a result of a small
increase in rental rates.
Lighting rental revenue increased $2.9 million to $4.1 million for the year
ended December 31, 1995 from $1.2 million for the year ended December 31, 1994.
The increase was primarily due to an increase in lighting rental revenue of $3.1
million resulting from the acquisition of Panavision Canada in January 1995,
offset by a decrease in lighting rental revenue at the Panavision Florida
facility.
Sales and other revenue increased $1.8 million, or 12.6%, to $16.1 million
for the year ended December 31, 1995 from $14.3 million for the year ended
December 31, 1994. The increase was primarily due to the increase in Lee
Filters' sales of $0.9 million and a $0.4 million increase due to the
acquisition of Panavision Canada in January 1995.
Cost of camera rental increased $1.4 million, or 4.5%, to $32.7 million for
the year ended December 31, 1995 from $31.3 million for the year ended December
31, 1994. The increase was primarily due to additional net operating costs
relating to Panavision Canada.
Cost of lighting rental increased $1.0 million to $1.7 million for the year
ended December 31, 1995 from $0.7 million for the year ended December 31, 1994.
The increase was primarily due to the $0.8 million in additional operating costs
relating to Panavision Canada.
Cost of sales and other increased $1.0 million, or 11.1%, to $10.0 million
for the year ended December 31, 1995 from $9.0 million for the year ended
December 31, 1994. Of the increase, $0.6 million was due to the increase in Lee
Filters cost of sales and $0.3 million was due to the acquisition of Panavision
Canada in January 1995.
Gross margin increased $14.9 million, or 41.3%, to $51.0 million for the
year ended December 31, 1995 from $36.1 million for the year ended December 31,
1994. The increase was primarily due to the factors discussed above.
Selling, general and administrative expenses increased $9.3 million, or
48.4%, to $28.5 million for the year ended December 31, 1995 from $19.2 million
for the year ended December 31, 1994. The increase was partially due to
non-recurring charges in 1995 including a $1.8 million charge for the early
lease termination for the Company's former corporate headquarters and a $1.7
million write-down of the carrying value of certain real property owned by the
Company's U.K. rental operation. Additionally, the acquisition of Panavision
Canada resulted in a $1.7 million increase in selling, general and
administrative expenses. The remaining increase was due to an increase in
incentive compensation costs, the acceleration of the amortization of leasehold
improvements in the Company's former corporate headquarters and increased
marketing costs.
Research and development expenses increased $0.5 million, or 20.0%, to $3.0
million for the year ended December 31, 1995 from $2.5 million for the year
ended December 31, 1994. The increase was due to the addition of staff and other
expenses related to the development of a new camera system, specialty lenses and
accessories.
18
<PAGE>
Operating income increased $5.0 million, or 34.5%, to $19.5 million for the
year ended December 31, 1995 from $14.5 million for the year ended December 31,
1994. The increase was primarily due to the factors discussed above.
Net interest expense increased $0.3 million, or 5.7%, to $5.6 million for
the year ended December 31, 1995 from $5.3 million for the year ended December
31, 1994. The increase was due to interest expense related to Panavision
Canada's credit facility.
Net other income decreased $0.3 million, or 42.9%, to $0.4 million for the
year ended December 31, 1995 from $0.7 million for the year ended December 31,
1994. The decrease was primarily due to minority interest expense of $0.4
million in 1995 resulting from the acquisition of Panavision Canada in January
1995.
Income before income taxes decreased $2.0 million, or 22.5%, to $6.9 million
for the year ended December 31, 1995 from $8.9 million for the year ended
December 31, 1994. The decrease was primarily due to the factors discussed
above.
The effective tax rates for the years ended December 31, 1995 and 1994 were
19.8% and 20.7%, respectively, and were lower than the statutory rate
principally due to a change in the valuation allowance for deferred tax assets
and certain other non-taxable and non-deductible items.
Net income decreased $1.5 million, or 21.1%, to $5.6 million for the year
ended December 31, 1995 from $7.1 million for the year ended December 31, 1994.
The decrease was primarily due to the factors discussed above.
LIQUIDITY AND CAPITAL RESOURCES
In May 1996, the Company effected the Recapitalization, pursuant to which,
for a total of $126.1 million in cash, the Company acquired all the equity
interests in PILP it did not previously own and retired all of PILP's
outstanding debt securities. The Recapitalization was financed by (i) borrowings
of $110.0 million under a new credit facility, (ii) $23.0 million from working
capital and (iii) loans from Warburg, Pincus and the Company's senior
management. In addition, effective July 1, 1996, Warburg, Pincus contributed
substantially all of the assets of Lee Lighting to the Company as a capital
contribution in the amount of $8.0 million and made an additional capital
contribution of $0.8 million in cash.
The Company completed its initial public offering of 4,025,000 common shares
on November 20, 1996 which raised net proceeds of approximately $61.6 million.
Of the net proceeds from the offering, $47.0 million were used to repay bank
debt and approximately $12.9 million were used to repay subordinated notes and
accrued interest payable to Warburg, Pincus and the Company's senior management.
The balance of the net proceeds were maintained as working capital for ongoing
operations.
In December 1996, the Company amended and restated its existing credit
facility ("the Amended Credit Agreement") which is comprised of a term loan in
the amount of $30.0 million and a $70.0 million revolving credit facility. The
term loan has a maturity date of December 31, 2002 with an amortization schedule
of $5.0 million payable by December 31, 1997 and $1.25 million payable quarterly
beginning in March 1998 through December 2002. The revolving credit facility is
reduced by approximately $1.8 million quarterly through 1998, and thereafter by
approximately $3.9 million each succeeding quarter through December 2002.
Interest is payable at rates equal to a margin, in excess of the prime rate
or LIBOR, which fluctuates directly with the Company's total debt ratio, as
defined in the Amended Credit Agreement. The prime rate margin ranges between 0%
to 0.75% and the LIBOR margin ranges between 0.75% to 2.0%. At December 31,
1996, the average interest rate for the borrowings outstanding under the Amended
Credit Agreement was 6.54% and the principal amount outstanding was $60.0
million.
19
<PAGE>
The Amended Credit Agreement allows the Company to make one or more
acquisitions not exceeding $15.0 million for each acquisition or $40.0 million
in the aggregate for all acquisitions without the prior consent of the lender
provided that the acquisition target's line of business is similar to that of
the Company. This additional flexibility will allow the Company to expand its
product offerings more rapidly than in past years. The Company's obligations
under the Amended Credit Agreement are secured by substantially all of the
Company's assets.
The Company has entered into two interest rate protection agreements to
protect the Company from LIBOR increases. One agreement covering a notional
amount of $45.0 million expires on June 10, 1997 and protects the Company from
LIBOR increases above 6.44%. The other agreement for a notional amount of $50.0
million expires on June 10, 1998 and protects the Company from LIBOR increases
above 7.37%. Since the floor for each of these interest rate protection
agreements is 5.50%, in the event of a LIBOR reduction below this floor, there
would be no benefit to the Company.
The Amended Credit Agreement also requires the Company to meet certain
financial tests and contains other restrictive covenants, including certain
limitations on the Company's ability to incur debt, pay dividends, repurchase
its equity securities, sell assets and make investments, acquisitions,
dispositions and capital expenditures. The Amended Credit Agreement also
requires, upon the occurrence of certain events such as the sale of assets, the
issuance of equity securities, the generation of Excess Cash Flow (as defined in
the Amended Credit Agreement) and the incurrence of certain indebtedness, that a
portion of the loans be repaid. The financial covenants regarding capital
expenditures are significantly less restrictive than those included in the
Company's credit facility prior to the Recapitalization. The Company does not
believe the covenants will materially restrict its ability to make capital
expenditures and anticipates making additional capital expenditures to
manufacture camera systems at a faster rate in 1997 than in 1996. In 1997, the
Company intends to manufacture 72 camera systems compared to 35 manufactured in
1996.
With the exception of its initial public offering, the Company relies
primarily upon cash provided by operations to finance its operations, repay
long-term indebtedness and fund capital expenditures primarily for manufacturing
camera systems, lenses and accessories and purchasing other rental equipment.
The following table sets forth certain information from the Company's
Consolidated Statements of Cash Flows for the years indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
<S> <C> <C> <C>
1996 1995 1994
--------- -------------- ---------
<CAPTION>
(IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided by (used in):
Operating activities.............................................. $ 26,432 $ 34,317 $ 26,379
Investing activities.............................................. (33,472) (15,699) (15,449)
Financing activities.............................................. (14,296) (9,724) (4,379)
</TABLE>
For the year ended December 31, 1996, cash provided by operating activities
was $26.4 million. Net income of $13.3 million, adjusted for depreciation and
amortization of $19.2 million and the non-controlling partners' interest in PILP
of $4.5 million, provided $37.0 million, which was partially offset by a use of
$11.9 million, resulting from the net change in non-cash working capital items,
and miscellaneous non-cash items of $(1.4) million. Total investing activities
of $33.5 million were comprised of capital expenditures of $27.8 million, offset
by $1.4 million of proceeds received from the disposition of certain equipment.
The majority of the capital expenditures were used to manufacture camera rental
systems and to purchase other rental equipment, with approximately $1.2 million
incurred to complete the leasehold improvements at the new facility in Woodland
Hills. The net investing activities also reflect a benefit of $1.0 million for
cash on the balance sheet of Lee Lighting which was acquired in July 1996. In
addition, $8.1 million was used to acquire the non-controlling partners'
interest in PILP in connection with the Recapitalization. Cash used in financing
activities of $14.3 million was comprised of the reduction in
20
<PAGE>
outstanding borrowings in connection with the Recapitalization and $1.5 million
of distributions to taxing authorities on behalf of the partners in PILP.
For the year ended December 31, 1995, cash provided by operating activities
was $34.3 million. Net income of $5.6 million, adjusted for depreciation and
amortization of $17.5 million, the non-controlling partners' interest in PILP of
$7.3 million and the net change in non-cash working capital items of $3.0
million, provided $33.4 million of the total. Total investing activities of
$15.7 million were comprised of capital expenditures of $19.5 million, partially
offset by $2.2 million of proceeds received from the disposition of certain
equipment. Approximately $15.5 million of the capital expenditures were used to
manufacture camera rental systems and to purchase other rental equipment and
$3.4 million were incurred for leasehold improvements to renovate the Company's
new facility in Woodland Hills. The net investing activities also reflect a
benefit of $1.6 million for cash on the balance sheet of Panavision Canada,
which was acquired in January 1995. Financing activities of $9.7 million were
comprised of $7.5 million in repayments of borrowings under the credit
facilities existing prior to the Recapitalization and $2.2 million of
distributions to taxing authorities on behalf of the partners in PILP.
The Company intends to use the cash provided by operating activities to make
additional capital expenditures to manufacture camera systems and purchase other
rental equipment. The Company increased capital expenditures from $19.5 million
in 1995 to $27.8 million in 1996 and expects to spend $33.5 million in 1997 in
order to significantly increase its production of camera systems and to provide
additional rental and capital equipment for Lee Lighting and all other Company
operations. The Company increased research and development expenses incurred in
developing new rental products from $3.0 million in 1995 to $4.3 million in 1996
and intends to spend $4.7 million in 1997. All research and development expenses
and capital expenditures for 1996 were funded by cash flow from operations and
the Company expects all such expenditures in 1997 to be funded by cash flow from
operations.
Additional cash flow provided by operating activities will be used to repay
debt outstanding under the Amended Credit Agreement. The Company believes that
its existing working capital together with borrowings under the Amended Credit
Agreement and anticipated cash flow from operating activities will be sufficient
to meet its expected operating and capital spending requirements for at least
the next year.
SEASONALITY
The Company's revenue and net income are subject to seasonal fluctuations
experienced primarily in the first and second calendar quarters. Feature film
and commercial production activity typically reaches its peak in the third and
fourth quarters. In North America, episodic television programs cease filming in
the second quarter for several months, and typically resume production in
August.
IMPACT OF INFLATION
The Company's results of operations and financial condition are presented
based upon historical cost. While it is difficult to accurately measure the
impact of inflation due to the imprecise nature of the estimates required, the
Company believes that the effects of inflation, if any, on its results of
operations and financial condition have been minor.
COMPENSATION UNDER STOCK OPTIONS
In connection with the Recapitalization, the Company has granted stock
options to certain members of senior management to acquire 529,875 shares of
Common Stock at $1.22 per share. These options will vest in 1998 or 1999 only if
certain EBDIT and Free Cash Flow Targets (as defined) are achieved by the
Company. Accordingly, these options are being treated as variable options and
could result in a significant non-cash compensation charge in 1998 or 1999 if
these performance targets are achieved. The per share compensation charge will
be equal to the difference between the option exercise price of $1.22 and the
quoted market value of the Common Stock in the future when the targets are
achieved.
21
<PAGE>
FORWARD-LOOKING STATEMENTS
Certain plans, objectives, projections and other information regarding
future performance and outcomes discussed in this Form 10-K are forward-looking
statements that are subject to risks and uncertainty. There can be no assurance
that these future results will be achieved. Potential risk and uncertainty which
could adversely affect the Company's ability to obtain these results include,
without limitation, the following factors:
- significant reduction in the total number of feature films produced
- competitive pressures arising from changes in technology, customer
requirements and industry standards
- an increase in expenses related to new product initiatives and product
development efforts
- unfavorable foreign currency fluctuations
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
An index to financial statements and required financial statement schedules
is set forth in Item 14(a).
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
The information required by Items 10 through 13 is included in the Company's
definitive Proxy Statement dated March 31, 1997, under the captions "Election of
Directors," "Security Ownership of Certain Beneficial Owners and Management,"
"Executive Compensation," "Certain Relationships and Related Transactions" and
"Section 16(a) Beneficial Ownership Reporting Compliance." Such information is
incorporated herein by reference, pursuant to General Instruction G (3).
22
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
<TABLE>
<S> <C>
(a)(1) & The consolidated financial statements and consolidated financial statement
(2) schedule filed as part of this Annual Report on Form 10-K can be found
beginning on page F-1.
(a)(3) See (c) below
(b) Reports on Form 8-K
None.
(c) Exhibits
3.1* Restated Certificate of Incorporation.
3.2* Restated By-Laws.
4* Specimen of the Company's Common Stock Certificate.
10.1* Amended and Restated Stockholders Agreement, dated as of June 12, 1996.
10.2* Restated and Amended Credit Agreement, dated September 10, 1996, among
Panavision
International, L.P., the subsidiary guarantors and the lenders listed therein,
and The Chase Manhattan Bank, as Administrative Agent.
10.3* 1996 Stock Option Plan.
10.4* Employment Agreement, dated as of June 12, 1996, between the Company and
William C. Scott.
10.5* Lease, dated June 13, 1995, between the Company and Trizec Warner Inc.
10.6* Executive Incentive Compensation Plan.
10.7 Second Restated and Amended Credit Agreement, dated December 5, 1996 among
Panavision International, L.P., the subsidiary guarantors and the lenders
listed therein, and The Chase Manhattan Bank, as Administrative Agent.
10.8 First Amended and Restated Stock Option Plan.
11 Computation of earnings per share.
21* Subsidiaries of the Company.
23 Consent of Ernst & Young LLP, Independent Auditors.
27 Financial Data Schedule.
99.1* Consent of Martin D. Payson to be named as a director of the Company.
</TABLE>
- ------------------------
* Incorporated herein by reference to the identically numbered exhibit to the
Company's Registration Statement on Form S-1, Registration No. 333-12235.
23
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
PANAVISION INC.
Date: March 26, 1997 By: s/ William C. Scott
----------------------------
William C. Scott
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
President, Chief Operating
/s/ John S. Farrand Officer and Director March 26, 1997
- ------------------------------
John S. Farrand
Executive Vice President
/s/ Jeffrey J. Marcketta and Chief Financial Officer March 26, 1997
- ------------------------------
Jeffrey J. Marcketta
/s/ Christopher M.R. Phillips Controller March 26, 1997
- ------------------------------
Christopher M.R. Phillips
/s/ Sidney Lapidus Director March 26, 1997
- ------------------------------
Sidney Lapidus
/s/ Martin D. Payson Director March 26, 1997
- ------------------------------
Martin D. Payson
/s/ Willis G. Ryckman Director March 26, 1997
- ------------------------------
Willis G. Ryckman
/s/ Joanne R. Wenig Director March 26, 1997
- ------------------------------
Joanne R. Wenig
24
<PAGE>
INDEX TO FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULE
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
Report of Ernst & Young LLP, Independent Auditors......................................................... F-2
Consolidated Statements of Income --Years Ended December 31, 1996, 1995 and 1994.......................... F-3
Consolidated Balance Sheets--December 31, 1996 and December 31, 1995...................................... F-4
Consolidated Statements of Stockholders' Equity--Years Ended December 31, 1996, 1995 and 1994............. F-5
Consolidated Statements of Cash Flows--Years Ended December 31, 1996, 1995 and 1994....................... F-6
Notes to Consolidated Financial Statements................................................................ F-7
Financial Statement Schedule:
Schedule II--Valuation and Qualifying Accounts and Reserves............................................... S-1
</TABLE>
All other schedules are omitted because they are not required by the
regulations or related instructions or are not applicable.
F-1
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Panavision Inc.
We have audited the accompanying consolidated balance sheets of Panavision
Inc. as of December 31, 1996 and 1995, and the related consolidated statements
of income, stockholders' equity, and cash flows for each of the three years in
the period ended December 31, 1996. Our audits also included the financial
statement schedule listed in the Index at Item 14(a). These financial statements
and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Panavision Inc.
at December 31, 1996 and 1995, and the consolidated results of its operations
and its cash flows for each of the three years in the period ended December 31,
1996, in conformity with generally accepted accounting principles. Also, in our
opinion, the related financial statement schedule, when considered in relation
to the basic financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
ERNST & YOUNG LLP
Los Angeles, California
February 26, 1997
F-2
<PAGE>
PANAVISION INC.
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Camera rental.................................................................... $ 89,785 $ 75,083 $ 61,642
Lighting rental.................................................................. 14,917 4,121 1,160
Sales and other.................................................................. 19,936 16,124 14,298
--------- --------- ---------
Total rental revenue and sales................................................... 124,638 95,328 77,100
Cost of camera rental............................................................ 37,276 32,721 31,293
Cost of lighting rental.......................................................... 9,847 1,687 749
Cost of sales and other.......................................................... 12,350 9,961 8,953
--------- --------- ---------
Gross margin..................................................................... 65,165 50,959 36,105
Selling, general and administrative expenses..................................... 30,688 28,486 19,210
Research and development expenses................................................ 4,310 2,986 2,442
--------- --------- ---------
Operating income................................................................. 30,167 19,487 14,453
Interest income.................................................................. 747 1,597 725
Interest expense................................................................. (8,182) (7,213) (6,043)
Foreign exchange gain (loss)..................................................... 368 (32) 597
Other, net....................................................................... (1,793) 447 68
--------- --------- ---------
Income before non-controlling partners' interest in PILP and income taxes........ 21,307 14,286 9,800
Non-controlling partners' interest in PILP....................................... (4,500) (7,348) (879)
--------- --------- ---------
Income before income taxes....................................................... 16,807 6,938 8,921
Income tax provision............................................................. (3,536) (1,375) (1,843)
--------- --------- ---------
Net income....................................................................... $ 13,271 $ 5,563 $ 7,078
--------- --------- ---------
--------- --------- ---------
Net income per common share...................................................... $.84 $.36 $.46
--------- --------- ---------
--------- --------- ---------
Shares used in computation....................................................... 15,733 15,277 15,277
</TABLE>
See accompanying notes.
F-3
<PAGE>
PANAVISION INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
<S> <C> <C>
1996 1995
---------- ----------
ASSETS
Current assets:
Cash and cash equivalents............................................................... $ 10,629 $ 31,685
Accounts receivable (net of allowance of $2,500 in 1996 and $2,043 in 1995)............. 20,124 13,480
Inventories............................................................................. 5,182 4,379
Prepaid expenses and other current assets............................................... 2,596 1,621
---------- ----------
Total current assets...................................................................... 38,531 51,165
Property, plant and equipment, net........................................................ 130,441 111,801
Deferred income tax assets................................................................ 3,742 --
Other..................................................................................... 4,032 2,785
---------- ----------
Total assets.............................................................................. $ 176,746 $ 165,751
---------- ----------
---------- ----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable........................................................................ $ 6,168 $ 9,339
Accrued liabilities..................................................................... 13,643 11,042
Current maturities of long-term debt.................................................... 5,000 4,274
Other current liabilities............................................................... 2,403 507
---------- ----------
Total current liabilities................................................................. 27,214 25,162
Notes payable to affiliates............................................................... -- 7,263
Long-term debt............................................................................ 55,000 117,415
Deferred income tax liabilities........................................................... 549 2,409
Other liabilities......................................................................... 965 1,897
Non-controlling partners' interest in PILP................................................ -- 5,149
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.01 par value; 2,000 shares authorized; no shares issued and
outstanding........................................................................... -- --
Common stock, $.01 par value; 50,000 shares authorized; 18,155 shares issued and
outstanding at December 31, 1996, and 13,706 shares issued and outstanding at December
31, 1995.............................................................................. 181 137
Additional paid-in capital.............................................................. 76,109 4,863
Retained earnings....................................................................... 14,975 1,704
Foreign currency translation adjustment................................................. 1,753 (248)
---------- ----------
Total stockholders' equity............................................................ 93,018 6,456
---------- ----------
Total liabilities and stockholders' equity................................................ $ 176,746 $ 165,751
---------- ----------
---------- ----------
</TABLE>
See accompanying notes.
F-4
<PAGE>
PANAVISION INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK CUMULATIVE
-------------------------- RETAINED FOREIGN
SHARES ISSUED ADDITIONAL EARNINGS CURRENCY STOCKHOLDERS'
AND PAID-IN (ACCUMULATED TRANSLATION EQUITY
OUTSTANDING AMOUNT CAPITAL DEFICIT) ADJUSTMENT (DEFICIENCY)
------------- ----------- ----------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1994.................. 13,706 $ 137 $ 4,863 $ (10,937) $ (769) $ (6,706)
Net income................................ -- -- -- 7,078 -- 7,078
Foreign currency translation adjustment... -- -- -- -- 550 550
------ ----- ----------- ------------ ----------- ------------
Balance at December 31, 1994................ 13,706 137 4,863 (3,859) (219) 922
Net income................................ -- -- -- 5,563 -- 5,563
Foreign currency translation adjustment... -- -- -- -- (29) (29)
------ ----- ----------- ------------ ----------- ------------
Balance at December 31, 1995................ 13,706 137 4,863 1,704 (248) 6,456
Net income................................ -- -- -- 13,271 -- 13,271
Compensation recorded in connection with
shares issued to officers............... 424 4 891 -- -- 895
Net proceeds from initial public
offering................................ 4,025 40 61,585 -- -- 61,625
Contribution of Lee Lighting assets....... -- -- 8,000 -- -- 8,000
Contribution from parent.................. -- -- 770 -- -- 770
Foreign currency translation adjustment... -- -- -- -- 2,001 2,001
------ ----- ----------- ------------ ----------- ------------
Balance at December 31, 1996................ 18,155 $ 181 $ 76,109 $ 14,975 $ 1,753 $ 93,018
------ ----- ----------- ------------ ----------- ------------
------ ----- ----------- ------------ ----------- ------------
</TABLE>
See accompanying notes.
F-5
<PAGE>
PANAVISION INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
<S> <C> <C> <C>
1996 1995 1994
---------- --------- ---------
OPERATING ACTIVITIES
Net income...................................................................... $ 13,271 $ 5,563 $ 7,078
Adjustments to derive net cash provided by operating activities:
Depreciation and amortization............................................... 19,203 17,479 15,031
Deferred interest........................................................... (88) (264) (44)
Deferred income taxes....................................................... (2,031) 620 1,241
(Gain) loss on sale of property and equipment............................... (928) 597 (647)
Non-controlling partners' interest in PILP.................................. 4,500 7,348 879
Stock compensation expense.................................................. 895 -- --
Changes in operating assets and liabilities, net of the effect of
acquisitions:
Accounts receivable....................................................... (6,644) (1,498) (2,286)
Inventories............................................................... (147) (1,138) (318)
Prepaid expenses and other current assets................................. (377) 17 909
Accounts payable.......................................................... (4,004) 3,629 947
Accrued liabilities....................................................... 683 1,484 3,355
Other, net.................................................................. 2,099 480 234
---------- --------- ---------
Net cash provided by operating activities....................................... 26,432 34,317 26,379
INVESTING ACTIVITIES
Acquisition of non-controlling partners' interest in PILP....................... (8,126) -- --
Capital expenditures............................................................ (27,816) (19,454) (16,251)
Proceeds from dispositions of equipment......................................... 1,444 2,139 1,252
Cash acquired in Panavision Canada Corp. acquisition............................ -- 1,616 --
Cash acquired in Lee Lighting, Ltd. acquisition................................. 1,026 -- --
Other........................................................................... -- -- (450)
---------- --------- ---------
Net cash used in investing activities........................................... (33,472) (15,699) (15,449)
FINANCING ACTIVITIES
Deferred financing costs........................................................ (1,469) -- --
Distributions to non-controlling partners in PILP............................... (1,523) (2,199) (879)
Borrowings under notes payable.................................................. 110,000 -- --
Repayments of notes payable..................................................... (176,166) (7,525) (3,500)
Net proceeds from initial public offering....................................... 61,625 -- --
Contribution from parent........................................................ 770 -- --
Notes payable to affiliates..................................................... (7,533) -- --
---------- --------- ---------
Net cash used in financing activities........................................... (14,296) (9,724) (4,379)
Effect of exchange rate changes on cash......................................... 280 57 65
---------- --------- ---------
Net increase (decrease) in cash and cash equivalents............................ (21,056) 8,951 6,616
Cash and cash equivalents at beginning of period................................ 31,685 22,734 16,118
---------- --------- ---------
Cash and cash equivalents at end of period...................................... $ 10,629 $ 31,685 $ 22,734
---------- --------- ---------
---------- --------- ---------
SUPPLEMENTAL CASH FLOW INFORMATION
Interest paid during the period................................................. $ 8,670 $ 7,490 $ 5,892
Income taxes paid during the period............................................. $ 4,267 $ 1,075 $ 565
</TABLE>
- ------------------------
During 1996, Warburg, Pincus acquired substantially all of the assets of Lee
Lighting and contributed them in a non-cash transaction to the Company (see Note
14).
See accompanying notes.
F-6
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
Panavision Inc. (Panavision or the Company), a majority owned subsidiary of
Warburg, Pincus Capital Company, L.P. (Warburg, Pincus or Parent), commenced
operations effective June 1, 1991. Prior to the May 1996 recapitalization
transaction described below, Panavision owned 100% of the general partnership
interests, 30% of the non-voting Class A limited partnership interests and 70%
of the voting Class B limited partnership interests in Panavision International,
L.P. (PILP), a Delaware limited partnership. PILP was formed effective June 1,
1991 to own and operate the camera rental and lighting filters business
previously owned by Lee International Inc. (LII), an affiliated company. This
transaction was recorded on a historical cost basis. All of the Company's
operations are conducted through PILP and its subsidiaries.
The consolidated financial statements include the accounts of Panavision,
PILP and PILP's majority-owned subsidiaries. All significant intercompany
amounts and transactions have been eliminated.
Panavision is a leading designer and manufacturer of high-precision motion
picture camera systems, including lenses and accessories, for use in the film
and television industries. The Company rents its products through its owned and
operated facilities in the United States, Canada, United Kingdom and a worldwide
agent network. In addition to manufacturing and renting camera systems, the
Company also rents lighting, lighting grip, power generation and related
transportation equipment and sells lighting filters.
RECAPITALIZATION
In May 1996, the Company effected a recapitalization (the Recapitalization),
pursuant to which it acquired all of PILP's limited partnership units it did not
previously own and retired all of PILP's outstanding debt securities, other than
those owned by Warburg, Pincus, for a total of $126.1 million in cash. As part
of the Recapitalization, Warburg, Pincus and senior management loaned the
Company $12.5 million in the form of subordinated debt, and the Company borrowed
$110.0 million through a credit arrangement with a group of banks (see Note 6).
The balance of the funds required came from the Company's cash on hand. As a
result of the Recapitalization, the Company owns all of the general and limited
partnership units in PILP. During November 1996 the Company completed an initial
public offering of its common stock. A portion of the offering proceeds were
used to retire the loans from Warburg, Pincus and senior management. The
remainder was contributed to PILP and used to pay down a portion of the
Company's bank borrowings.
NON-CONTROLLING PARTNERS' INTEREST IN PILP
The non-controlling partners' interest in PILP represents 70% of the
non-voting Class A limited partnership units and the 30% voting Class B limited
partnership units which Panavision did not own prior to the Recapitalization.
The PILP partnership agreement included provisions for the allocation of the
partnership earnings and losses between Panavision and the non-controlling
partners. However, since the non-controlling partners had a deficit in the
partnership capital accounts as of the inception of PILP, such deficit was
allocated to Panavision, as were PILP's losses for 1991 and 1992. Certain other
distributions made by PILP in each year for tax payments, have all been charged
against Panavision's interest in PILP
F-7
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
and as a reduction of income in the accompanying consolidated financial
statements. Accordingly, as required under generally accepted accounting
principles, the non-controlling partners' share of PILP's income for 1993, 1994
and 1995 has been reduced to the extent of such deficit, losses and
distributions. As previously described, in connection with the Recapitalization,
Panavision has acquired the non-controlling partners' equity in PILP.
TRANSLATION OF FOREIGN CURRENCIES
The functional currency for the Company's foreign subsidiaries is the local
currency. All assets and liabilities denominated in foreign functional
currencies are translated into U.S. dollars at rates of exchange in effect at
the balance sheet date. Income statement items are translated at the average
rate of exchange prevailing during the period. Translation gains and losses are
recorded as a separate component of stockholders' equity. Gains and losses
resulting from transactions in other than functional currencies are reflected in
net income.
CASH EQUIVALENTS
The Company considers all highly liquid debt instruments purchased with
original maturity dates of three months or less and investments in money market
funds to be cash equivalents. The carrying amount reported in the balance sheet
for cash and cash equivalents approximates fair value.
INVENTORIES
Inventories are valued at the lower of cost or market value and are
determined principally under the first-in, first-out method.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment, including rental equipment, are stated at
cost. Maintenance and repairs are charged to expense as incurred. Additions,
improvements and replacements that extend asset life are capitalized.
Depreciation is provided on a straight-line basis over the estimated useful
lives of the assets. Leasehold improvements are amortized over the shorter of
the useful life of the related asset or the remaining lease term. Cost and
accumulated depreciation applicable to assets retired or otherwise disposed of
are eliminated from the accounts, and any gain or loss on such disposition is
reflected in income.
Depreciation is provided principally over the following useful lives:
<TABLE>
<S> <C>
Buildings and improvements.................................... 10--30 years
Rental assets................................................. 5--15 years
Machinery and equipment....................................... 5--10 years
Furniture and fixtures........................................ 5--10 years
</TABLE>
F-8
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INCOME TAXES
Income taxes are accounted for using the liability method in accordance with
Statement of Financial Accounting Standard No. 109 "Accounting for Income Taxes"
(see Note 5). Under this method, deferred tax liabilities and assets are
recognized for the expected future tax consequences of temporary differences
between the carrying amounts and the tax bases of assets and liabilities. It is
the Company's policy to not provide U.S. federal income taxes on undistributed
earnings of foreign subsidiaries, as such earnings, if any, are intended to be
permanently reinvested in those operations. As of December 31, 1996, there are
no material accumulated foreign earnings. The Company's pretax income from
foreign operations for 1996, 1995 and 1994 was $4,601,000, $2,719,000 and
$1,106,000, respectively.
CONCENTRATION OF CREDIT RISK
Most of the Company's customers are in the entertainment industry. The
Company performs ongoing credit evaluations of its customers and maintains
allowances for potential credit losses. The Company does not generally require
collateral. Actual losses and allowances have been within management's
expectations.
REVENUE RECOGNITION
Rental revenue is recognized over the related equipment rental period. Sales
revenue is recognized upon shipment. Returns and allowances, which have not been
significant, are provided for in the period of sale.
ACCOUNTING FOR LONG-LIVED ASSETS
Prior to the adoption of the Statement of Financial Accounting Standard No.
121 "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed of" (SFAS 121), the Company recorded an impairment loss of
$1.7 million during the year ended December 31, 1995 with respect to certain
real property owned by its U.K. rental operation. Effective January 1, 1996, the
Company has adopted SFAS 121. Long-lived assets, such as buildings, equipment
and identifiable intangibles, are reviewed for impairment whenever events or
changes in circumstances indicate that the net book value of these assets may
not be recoverable. With the exception of the impairment loss recognized during
1995 as described above, current and prior period financial statements have not
been affected by the adoption of SFAS 121.
EARNINGS PER SHARE
Earnings per share is computed using the weighted average number of shares
of common stock and common stock equivalents outstanding. Additionally, pursuant
to the Securities and Exchange Commission Staff Accounting Bulletins, all common
and common equivalent shares issued by the Company at an exercise price below
the initial public offering price during the twelve-month period prior to the
offering have been included in the calculation as if they were outstanding for
all periods presented under the treasury stock method. Variable options for
529,875 shares of common stock which vest only if certain EBDIT targets (as
defined) are achieved in 1998 and 1999 have been excluded from the computation
because their inclusion would be antidilutive.
F-9
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
STOCK-BASED BENEFITS
Statement of Financial Accounting Standards No. 123 "Accounting for
Stock-Based Compensation" (SFAS 123), requires that stock awards granted
subsequent to January 1, 1995 be recognized as compensation expense based on
their fair value at the date of grant. Alternatively, a company may use APB 25
"Accounting for Stock Issued to Employees," and disclose the pro forma income
amount which would have resulted from recognizing such awards at their fair
value. The Company will continue to account for stock-based compensation expense
under APB 25 and make the required pro forma disclosures for compensation.
USE OF ESTIMATES AND ASSUMPTIONS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from such estimates.
2. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
<S> <C> <C>
1996 1995
---------- ----------
Land.................................................................. $ 856 $ 777
Buildings and improvements............................................ 9,015 6,944
Rental assets......................................................... 217,785 185,986
Machinery and equipment............................................... 11,033 8,350
Furniture and fixtures................................................ 3,820 2,704
Construction-in-progress.............................................. -- 3,390
Other................................................................. 1,214 791
---------- ----------
243,723 208,942
Less accumulated depreciation and amortization........................ 113,282 97,141
---------- ----------
$ 130,441 $ 111,801
---------- ----------
---------- ----------
</TABLE>
Construction-in-progress represents assets constructed in conjunction with
the Company's relocation of its primary operating facilities in June 1996.
F-10
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. INVENTORIES
Inventories consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
<S> <C> <C>
1996 1995
--------- ---------
Finished goods............................................................. $ 2,008 $ 1,853
Work-in-process............................................................ 99 61
Component parts............................................................ 1,586 1,236
Supplies................................................................... 1,489 1,229
--------- ---------
$ 5,182 $ 4,379
--------- ---------
--------- ---------
</TABLE>
4. ACCRUED LIABILITIES
Accrued liabilities consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
<S> <C> <C>
1996 1995
--------- ---------
Interest payable........................................................ $ 294 $ 675
Professional fees....................................................... 2,015 809
Taxes other than income taxes........................................... 555 330
Payroll and related costs............................................... 4,571 5,058
Customer deposits....................................................... 174 64
Accrued marketing and other............................................. 6,034 4,106
--------- ---------
$ 13,643 $ 11,042
--------- ---------
--------- ---------
</TABLE>
5. INCOME TAXES
The provision for income taxes includes the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------
<S> <C> <C> <C>
1996 1995 1994
--------- --------- ---------
Current provision:
Federal........................................................ $ 3,559 $ 515 $ 300
State.......................................................... 727 154 107
Foreign........................................................ 1,281 86 195
--------- --------- ---------
Total current provision.......................................... 5,567 755 602
--------- --------- ---------
Deferred provision:
Federal........................................................ (1,372) 537 711
State.......................................................... (730) 83 195
Foreign........................................................ 71 -- 335
--------- --------- ---------
Total deferred provision......................................... (2,031) 620 1,241
--------- --------- ---------
$ 3,536 $ 1,375 $ 1,843
--------- --------- ---------
--------- --------- ---------
</TABLE>
F-11
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. INCOME TAXES (CONTINUED)
A reconciliation from the provision for income taxes based on the federal
statutory rate of 35% to the actual rate follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------
<S> <C> <C> <C>
1996 1995 1994
--------- --------- ---------
Statutory rate applied to income before income taxes.................................. 35.0% 35.0% 35.0%
State income taxes, net of federal income tax benefit................................. 4.3 2.2 5.1
Reduction of valuation allowance...................................................... (27.0) (3.7) (29.5)
Non-deductible (non-taxable) differences in allocation of earnings to non-controlling
partners............................................................................ 9.0 (14.9) 3.4
Other non-deductible expenses......................................................... -- 1.2 5.8
Other, net............................................................................ (.3) -- 0.9
--------- --------- ---------
21.0% 19.8% 20.7%
--------- --------- ---------
--------- --------- ---------
</TABLE>
Deferred income taxes reflect the net tax effects of net operating loss
carryforwards and temporary differences between the carrying amounts of assets
and liabilities for financial reporting purposes and the amounts used for income
tax purposes. Significant components of the Company's deferred tax assets and
liabilities as of December 31, 1996 and 1995 are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
<S> <C> <C>
1996 1995
--------- ---------
Deferred tax assets:
Domestic net operating loss carryforwards.............................. $ 2,736 $ 1,169
Foreign net operating loss carryforwards............................... 1,359 3,464
Tax credit carryforwards (primarily alternative minimum tax credits)... 9,503 1,830
Expense accruals....................................................... 1,911 1,613
Other.................................................................. 172 76
State income taxes..................................................... -- 115
--------- ---------
Total deferred tax assets................................................ 15,681 8,267
Valuation allowance...................................................... (6,557) (4,471)
--------- ---------
Net deferred tax assets.................................................. 9,124 3,796
Deferred tax liabilities:
Fixed assets........................................................... (5,874) (3,067)
Differences in allocations of income to non-controlling partners....... -- (3,138)
State income taxes..................................................... (57) --
--------- ---------
Total deferred tax liabilities........................................... (5,931) (6,205)
--------- ---------
Net deferred tax (liabilities) assets.................................... $ 3,193 $ (2,409)
--------- ---------
--------- ---------
</TABLE>
In connection with the Recapitalization, federal net operating loss (NOL)
carryforwards of $11,343,000, which expire from 2006 to 2009, alternative
minimum tax (AMT) credit carryforwards of $3,444,000, which may be used
indefinitely, and foreign tax credit (FTC) carryforwards of $956,000, which
F-12
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. INCOME TAXES (CONTINUED)
expire from 1996 to 2000, became available to the Company. All such tax
attributes are subject to annual limitations under Internal Revenue Code (the
Code) Section 382.
The Company has assessed the realizability of all of its tax attributes,
including those which became available as a result of the Recapitalization, and
has accordingly adjusted the valuation allowance as of December 31, 1996. The
Company's assessment took into account the limitations on the deductibility of
tax attributes under Section 382 and the alternative minimum tax provisions of
the Code, as well as the uncertainty of realizing taxable income in certain
foreign jurisdictions. In 1996, there was a net increase in the valuation
allowance of $2,086,000. The net increase is a result of recognition of a
valuation allowance related to deferred tax assets acquired in connection with
the Recapitalization partially offset by current realization of previously
unbenefitted NOLs. In 1995, there was a net decrease in the valuation reserve of
$256,000.
At December 31, 1996, the Company had the following tax attributes available
(in thousands):
<TABLE>
<CAPTION>
AMOUNT EXPIRING YEARS
--------- ------------------------
<S> <C> <C>
Federal NOL......................................... $ 7,817 2006 to 2009
AMT................................................. $ 6,344 Available indefinitely
FTC................................................. $ 1,414 1997 to 2000
State AMT........................................... $ 1,359 Available indefinitely
</TABLE>
6. LONG-TERM DEBT
As part of the Company's Recapitalization, as described in Note 1, effective
May 1996, all of the Company's then outstanding notes to banks were repaid for a
total of $126.1 million in cash. Such notes had average effective interest rates
ranging from 0% to 8% and original scheduled maturity dates ranging from June
1999 through June 2001.
In conjunction with the Recapitalization, the Company entered into a credit
agreement (the Credit Agreement) which provided for a term loan in the amount of
$100 million (Term Loan A and Term Loan B for $50 million each) and a revolving
credit loan of up to $20 million. Interest was payable at rates equal to a
margin in excess of the prime rate or LIBOR.
Under the Credit Agreement, the Company entered into two interest rate
protection agreements to guard the Company from LIBOR increases. The agreement
for a notional amount of $50 million expires on June 10, 1998 and protects the
Company from LIBOR increases beyond 7.37%. The agreement covering a notional
amount of $45 million expires on June 10, 1997 and protects the Company from
LIBOR increases beyond 6.44%.
As part of the Company's Recapitalization, effective December 1996, $47
million of the Company's then outstanding notes to banks were repaid. In
connection therewith, deferred financing costs in the amount of $1.8 million
were written off during the fourth quarter. Concurrently, the Company entered
into an amended credit agreement (the Amended Credit Agreement) which provides
for a term loan (Term Loan) in the amount of $30 million and a revolving credit
loan (Revolving Loan) of up to $70 million. Borrowings under the Amended Credit
Agreement at December 31, 1996 were $60 million. Interest is payable at rates
equal to a margin in excess of the prime rate or LIBOR. The amount of this
margin fluctuates directly with the Company's "Total Debt Ratio", as defined.
The prime rate margin ranges are from 0% to .75% for the Term Loan and the
Revolving Loan. LIBOR margin ranges are from .75% to
F-13
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. LONG-TERM DEBT (CONTINUED)
2.00% for the Term Loan and the Revolving Loan. Principal repayments under the
Amended Credit Agreement are payable quarterly beginning December 1997 through
December 2002. At December 31, 1996, the interest rate under the Amended Credit
Agreement was 6.54%. The Company believes the carrying value of its amounts
payable under the Amended Credit Agreement approximate fair value based upon
current yields for debt issues of similar quality and terms.
The following sets forth the aggregate principal maturities of the Company's
debt during the twelve month periods ending December 31st (in thousands):
<TABLE>
<S> <C>
1997............................................................... $ 5,000
1998............................................................... 5,000
1999............................................................... 5,000
2000............................................................... 5,000
2001............................................................... 5,000
Thereafter......................................................... 35,000
---------
$ 60,000
---------
---------
</TABLE>
The Company's obligations under the Amended Credit Agreement are secured by
substantially all of the Company's assets. The Amended Credit Agreement requires
that the Company meet certain financial tests and contains other restrictive
covenants including maintaining certain total debt ratio and interest coverage
ratio levels. In addition, the Company's ability to pay dividends to its
stockholders is restricted by this agreement.
As of December 31, 1996, the Company was in compliance with all financial
covenants of the Amended Credit Agreement.
Notes payable to affiliates consisted of amounts due to Warburg, Pincus and
the Company's senior management and had interest at 6.83%. These notes plus
accrued interest were repaid upon the completion of the Company's initial public
offering of common stock.
7. COMMON STOCK
The Board of Directors, in May and November of 1996, declared a 90:1 stock
split and a 1413:1 stock split, respectively, of the Company's common stock. All
applicable share and per share amounts have been adjusted for these stock
splits.
8. STOCK OPTION PLAN
In connection with the Recapitalization, the Board of Directors adopted a
stock option plan (the Plan) which is open to participation by directors,
officers, consultants, and other key employees of the Company or of its
subsidiaries and certain other key persons. The Plan provides for the issuance
of incentive and nonqualified stock options under the Code. An aggregate of
2,190,150 shares of common stock are reserved for issuance under the Plan. No
options have been exercised under the Plan as of December 31, 1996. The options
were granted for a term of ten years, five years in the case of incentive
options. If an incentive stock option is granted to an individual owning more
than 10% of the total combined voting power of all stock, the exercise price of
the option may not be less than 110% of the fair
F-14
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. STOCK OPTION PLAN (CONTINUED)
market value of the underlying shares on the date of grant and the term of the
option may not exceed five years.
The Plan provides that the aggregate fair market value (determined as of the
time the option is granted) of the common stock with respect to which incentive
stock options are exercisable for the first time by an optionee during any
calendar year shall not exceed $100,000.
In connection with the Recapitalization, certain members of management were
granted nonqualified options for an aggregate of 1,766,250 shares of common
stock exercisable at $1.22 per share. Options for 1,236,375 shares will vest at
the end of eight years from the date of grant and could vest sooner if certain
performance targets are met as described below:
- - Options for 353,250 shares vested upon the successful completion of the
initial public offering of common stock in November 1996.
- - Options for 300,263 shares vested upon achievement by the Company of EBDIT
(as defined) in excess of $46.2 million for the year ended December 31,
1996.
- - Options for up to 300,262 shares and 282,600 shares will vest if the Company
achieves EBDIT (as defined) of $50.4 million and $55.2 million,
respectively, or Free Cash Flow (as defined) of $30.7 million and $34.0
million, respectively, during its years ending December 31, 1997 and 1998,
respectively.
The exercise price of these options was less than the deemed fair market
value of the Company's common stock on the date of grant and accordingly the
Company recorded an aggregate non-cash compensation charge of $280,000 for the
year ended December 31, 1996.
Options for the remaining 529,875 shares will only vest if the Company
achieves EBDIT (as defined) of $62.0 million in its year ending December 31,
1998 or the lower amount of $65.0 million or a 10% increase of its actual 1998
EBDIT (as defined) in its year ending December 31, 1999. These options are being
accounted for as variable options, and the Company will record additional
non-cash compensation charges in 1998 or 1999 if the achievement of these
performance targets becomes probable. The per share compensation charge will be
equal to the difference between the option exercise price of $1.22 and the
quoted market value of the common stock in the future when the targets are
achieved.
In connection with the successful completion of the Company's initial public
offering, certain members of management and key employees were granted options
to purchase an aggregate of 369,000 shares of common stock. The exercise price
of these options is equal to the initial public offering price of $17.00 per
share. The options vest over a period of five years at 20% per year beginning on
the first anniversary of the initial public offering, November 20, 1997.
If the Company recognized employee stock option-related compensation expense
in accordance with SFAS 123 and used the Black-Scholes option valuation model
for determining the weighted average fair value of options granted during 1996,
its pro forma net income and pro forma net income per common share would have
been $13,258,000 and $.84, respectively. For purposes of the pro forma expense,
the weighted average fair value of the options is amortized over the vesting
period. The pro forma effect on net income for 1996 may not be representative of
future years' impact. The weighted average fair value of
F-15
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. STOCK OPTION PLAN (CONTINUED)
$1.35 for stock option grants was estimated at the date of grant using the
following assumptions and the Black-Scholes option valuation model.
<TABLE>
<CAPTION>
1996
---------
<S> <C>
Risk-free interest rate............................................................. 6.19%
Expected life....................................................................... 5 years
Expected volatility................................................................. .17
Expected dividend yield............................................................. 0.00%
</TABLE>
The Black-Scholes option valuation model was developed for use in estimating
the fair value of traded options. The Company's stock options have
characteristics significantly different from those of traded options such as
vesting restrictions and non-transferability of options. In addition, the
assumptions used in option valuation models are subjective, particularly the
expected stock price volatility for the underlying stock. Because changes in
these subjective input assumptions can materially affect the fair value
estimate, in management's opinion, the existing model does not provide a
reliable single measure of the fair value of its employee stock options.
In connection with the Recapitalization (see Note 1), the Company issued
423,900 shares of common stock to certain members of management. The Company has
recorded compensation expense in the amount of $615,000 during the twelve months
ended December 31, 1996. The compensation expense represents the Company's best
estimate of the fair market value of the stock as of the date of issuance, based
in part on value attributed to the equity securities of PILP which were acquired
in the Recapitalization, in an arms-length transaction.
9. EMPLOYEE BENEFIT PLANS
The Company sponsors a defined contribution 401(k) plan covering a majority
of its domestic employees. Eligible employees may contribute from 1% to 16% of
their base compensation. The Company makes matching contributions equal to 75%
of employee before-tax contributions from 1% to 6%. For the years ended December
31, 1996, 1995 and 1994, the Company recorded expense of $590,000, $503,000, and
$453,000, respectively, related to the 401(k) plan.
In addition, the Company sponsors a defined contribution retirement plan,
which covers certain foreign employees. Participating employees contribute from
5% to 15% of their base compensation. The Company contributes 13.4% of base
compensation for participating employees regardless of their level of
contribution. For the years ended December 31, 1996, 1995 and 1994, the Company
expensed $440,000, $189,000 and $136,000, respectively, representing the
Company's contributions.
F-16
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. GEOGRAPHICAL INFORMATION
Information as to the Company's operations in different geographical areas
is as follows (in thousands):
<TABLE>
<CAPTION>
UNITED
STATES UNITED KINGDOM OTHER(1) ELIMINATIONS TOTAL
---------- --------------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C>
DECEMBER 31, 1996
Revenues....................................... $ 86,435 $ 38,267 $ 14,768 $ (14,832) $ 124,638
Operating income............................... $ 28,514 $ 6,191 $ 6,291 $ (10,829) $ 30,167
Identifiable assets............................ $ 144,566 $ 31,991 $ 10,342 $ (10,153) $ 176,746
DECEMBER 31, 1995
Revenues....................................... $ 68,102 $ 23,004 $ 14,227 $ (10,005) $ 95,328
Operating income............................... $ 17,996 $ 3,492 $ 5,877 $ (7,878) $ 19,487
Identifiable assets............................ $ 145,300 $ 17,708 $ 10,420 $ (7,677) $ 165,751
DECEMBER 31, 1994
Revenues....................................... $ 58,389 $ 20,523 $ 2,180 $ (3,992) $ 77,100
Operating income............................... $ 14,350 $ 3,724 $ (20) $ (3,601) $ 14,453
Identifiable assets............................ $ 137,845 $ 23,868 $ 1,093 $ (13,099) $ 149,707
</TABLE>
- ------------------------
(1) Principally comprised of the Company's 85% owned subsidiary in Canada which
was acquired in January 1995 (see Note 14).
11. COMMITMENTS AND CONTINGENCIES
The Company leases real estate, equipment, and vehicles under noncancelable
operating leases. Future minimum payments under noncancelable operating leases
with initial or remaining terms of one year or more are presented below (in
thousands):
<TABLE>
<S> <C>
1997............................................................... $ 2,463
1998............................................................... 3,129
1999............................................................... 2,385
2000............................................................... 2,265
2001............................................................... 2,343
Thereafter......................................................... 21,181
---------
$ 33,766
---------
---------
</TABLE>
In June 1995, the Company entered into a 16-year lease for its principal
operating facility in Woodland Hills, California; the Company relocated to this
facility during June 1996. In connection with this new lease, the Company
negotiated a settlement for its existing leases covering its prior operating
facility and recorded a $1,800,000 charge during 1995 representing the cost of
the settlement.
During the years ended December 31, 1996, 1995 and 1994, rental expense
under operating leases was $3,190,000, $2,274,000 and $1,811,000, respectively.
The Company and its subsidiaries are defendants in actions for matters
arising out of normal business operations. The Company does not believe that any
such proceedings currently pending will have a materially adverse effect on its
consolidated financial position, results of operations, or cash flows.
F-17
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. RELATED PARTY TRANSACTIONS
In accordance with an agreement, certain administrative services have been
provided by the Company to LII. The amount received by the Company from LII was
$510,000, $687,000 and $854,000 for the years ended December 31, 1996, 1995 and
1994, respectively. The amounts received have been offset against selling,
general and administrative expenses in the accompanying consolidated statements
of income. The agreement with LII expired on September 30, 1996.
Included in other assets at December 31, 1996 and 1995, is a loan receivable
of $450,000 due in 2003 from Pany Rental, Inc. (dba Panavision New York), an
agent in which the Company acquired a one-third interest during 1994.
The Company also has a note due from an officer in the amount of $540,000
which is included in other assets. All accrued interest has been paid as of
December 31, 1996. This amount, which is due upon demand, is secured by real
property and bears interest at 7.04% per annum.
13. QUARTERLY OPERATING DATA (UNAUDITED)
The following is a summary of unaudited quarterly results of operations (in
thousands, except per share data) :
<TABLE>
<CAPTION>
QUARTER
--------------------------------------------
<S> <C> <C> <C> <C>
FIRST SECOND THIRD(1) FOURTH(2)
--------- --------- --------- -----------
YEAR ENDED DECEMBER 31, 1996
Net rental revenue and sales.......................................... $ 25,165 $ 24,095 $ 35,790 $ 39,588
Gross margin.......................................................... 13,569 12,356 19,046 20,194
Net income............................................................ 1,196 1,231 5,671 5,173
Net income per share.................................................. $ .08 $ .09 $ .37 $ .30
--------- --------- --------- -----------
--------- --------- --------- -----------
YEAR ENDED DECEMBER 31, 1995
Net rental revenue and sales.......................................... $ 21,685 $ 23,012 $ 24,781 $ 25,850
Gross margin.......................................................... 11,255 11,714 13,891 14,099
Net income (loss)..................................................... 2,545 (740) 2,630 1,128
Net income (loss) per share........................................... $ .17 $ (.05) $ .17 $ .07
--------- --------- --------- -----------
--------- --------- --------- -----------
</TABLE>
- ------------------------
(1) The third quarter of 1996 includes the operating results of Lee Lighting
since its acquisition effective July 1, 1996 (see Note 14).
(2) In connection with the refinancing of the Company's debt, the Company wrote
off $1.8 million of deferred financing costs in the fourth quarter of 1996.
14. BUSINESS COMBINATIONS
On January 20, 1995, the Company completed its acquisition of all of the
outstanding stock of Panavision Canada Corporation, "Panavision Canada" (a
former agent), for $177,000. The assignment of the purchase price among
identifiable tangible and intangible assets was based on analysis of fair values
of those assets. The fair values of the identifiable tangible and intangible
assets acquired, net of liabilities assumed, exceeded the purchase price, and
accordingly the values of fixed assets were reduced on a pro rata basis. This
business combination has been accounted for using the purchase method of
accounting.
F-18
<PAGE>
PANAVISION INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
14. BUSINESS COMBINATIONS (CONTINUED)
Therefore, the operating results of Panavision Canada are included in the
consolidated financial statements from January 20, 1995. Unaudited pro forma
revenue, net income and net income per share for the Company in 1994 would have
increased by $7,535,000, $1,608,000 and $.11, respectively, if Panavision Canada
had been acquired at the beginning of that year.
Effective July 1, 1996, Warburg, Pincus acquired substantially all of the
assets of Lee Lighting and contributed them to Panavision. The purchase price of
$8.0 million approximates the net book value of the assets acquired. Lee
Lighting rents lighting equipment, mobile generators and distribution equipment
and sells lighting consumables for the production of feature films, television
programs and other filmed entertainment.
The acquisition of Lee Lighting has been recorded under the purchase method
of accounting and its operating results have been included in the Company's
consolidated financial statements since the acquisition date of July 1, 1996.
The purchase price has been allocated to the following net assets acquired based
on their respective fair market values (in thousands):
<TABLE>
<S> <C>
Cash and equivalents................................................ $ 1,026
Inventories......................................................... 656
Prepaids and other.................................................. 598
Property and equipment.............................................. 8,671
Accounts payable and accrued liabilities............................ (2,951)
---------
$ 8,000
---------
---------
</TABLE>
Unaudited pro forma revenue, net income and net income per share for the
Company would have increased by $19,749,000, $1,204,000, and $.08, respectively,
for 1995 and by $10,400,000, $605,000 and $.04, respectively, for 1996 had the
Lee Lighting acquisition occurred at the beginning of each respective period.
F-19
<PAGE>
PANAVISION INC.
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
<TABLE>
<CAPTION>
BEGINNING AMOUNTS BALANCES ENDING
BALANCE RESERVED WRITTEN OFF BALANCE
----------- ----------- ------------- ---------
<S> <C> <C> <C> <C>
(IN THOUSANDS)
December 31, 1996.................................................... $ 2,043 $ 1,376 $ 919 $ 2,500
December 31, 1995.................................................... $ 1,772 $ 829 $ 558 $ 2,043
December 31, 1994.................................................... $ 1,597 $ 663 $ 488 $ 1,772
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
3.1* Restated Certificate of Incorporation.
3.2* Restated By-Laws.
4* Specimen of the Company's Common Stock Certificate.
10.1* Amended and Restated Stockholders Agreement, dated as of June 12, 1996.
Restated and Amended Credit Agreement, dated September 10, 1996, among Panavision
International, L.P., the subsidiary guarantors and the lenders listed therein, and
10.2* The Chase Manhattan Bank, as Administrative Agent.
10.3* 1996 Stock Option Plan.
Employment Agreement, dated as of June 12, 1996, between the Company and William C.
10.4* Scott.
10.5* Lease, dated June 13, 1995, between the Company and Trizec Warner Inc.
10.6* Executive Incentive Compensation Plan.
Second Restated and Amended Credit Agreement, dated December 5, 1996 among
Panavision International, L.P., the subsidiary guarantors and the lenders listed
10.7 therein, and The Chase Manhattan Bank, as Administrative Agent.
10.8 First Amended and Restated Stock Option Plan.
11 Computation of earnings per share.
21* Subsidiaries of the Company.
23 Consent of Ernst & Young LLP, Independent Auditors.
27 Financial Data Schedule.
99.1* Consent of Martin D. Payson to be named as a director of the Company.
</TABLE>
- ------------------------
* Incorporated herein by reference to the identically numbered exhibit to the
Company's Registration Statement on Form S-1, Registration No. 333-12235.
<PAGE>
Exhibit 10.7
[CONFORMED COPY]
================================================================================
PANAVISION INTERNATIONAL, L.P.
and
SUBSIDIARY GUARANTORS
-----------------------------
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 5, 1996
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
[Exhibits C and D are photocopies of the opinions as delivered]
================================================================================
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters............................. 2
1.01 Certain Defined Terms.......................................... 2
1.02 Accounting Terms and Determinations............................ 28
1.03 Classes and Types of Loans..................................... 29
Section 2. Commitments, Loans, Notes and Prepayments...................... 29
2.01 Loans.......................................................... 29
2.02 Borrowings..................................................... 31
2.03 Letters of Credit.............................................. 31
2.04 Changes of Commitments......................................... 37
2.05 Commitment Fee................................................. 39
2.06 Lending Offices................................................ 39
2.07 Several Obligations; Remedies Independent...................... 39
2.08 Notes.......................................................... 40
2.09 Optional Prepayments and Conversions or
Continuations of Loans..................................... 41
2.10 Mandatory Prepayments and Reductions of
Commitments................................................ 41
Section 3. Payments of Principal and Interest............................. 45
3.01 Repayment of Loans............................................. 45
3.02 Interest....................................................... 46
Section 4. Payments; Pro Rata Treatment; Computations;
Etc........................................................ 47
4.01 Payments....................................................... 47
4.02 Pro Rata Treatment............................................. 48
4.03 Computations................................................... 49
4.04 Minimum Amounts................................................ 49
4.05 Certain Notices................................................ 49
4.06 Non-Receipt of Funds by the Administrative Agent............... 50
4.07 Sharing of Payments, Etc....................................... 52
Section 5. Yield Protection, Etc.......................................... 53
5.01 Additional Costs............................................... 53
5.02 Limitation on Types of Loans................................... 55
5.03 Illegality..................................................... 56
5.04 Treatment of Affected Loans.................................... 56
5.05 Compensation................................................... 57
5.06 Additional Costs in Respect of Letters of Credit............... 58
5.07 U.S. Taxes..................................................... 58
5.08 Replacement Lenders............................................ 60
(i)
<PAGE>
Page
Section 6. Guarantee...................................................... 61
6.01 The Guarantee.................................................. 61
6.02 Obligations Unconditional...................................... 61
6.03 Reinstatement.................................................. 62
6.04 Subrogation.................................................... 63
6.05 Remedies....................................................... 63
6.06 Instrument for the Payment of Money............................ 63
6.07 Continuing Guarantee........................................... 64
6.08 Rights of Contribution......................................... 64
6.09 General Limitation on Guarantee Obligations.................... 65
Section 7. Conditions Precedent........................................... 65
7.01 Effectiveness.................................................. 65
7.02 Initial and Subsequent Extensions of Credit.................... 68
Section 8. Representations and Warranties................................. 68
8.01 Existence...................................................... 68
8.02 Financial Condition............................................ 69
8.03 Litigation..................................................... 69
8.04 No Breach...................................................... 70
8.05 Action......................................................... 70
8.06 Approvals...................................................... 70
8.07 Use of Credit.................................................. 71
8.08 ERISA.......................................................... 71
8.09 Taxes.......................................................... 71
8.10 Investment Company Act......................................... 71
8.11 Public Utility Holding Company Act............................. 71
8.12 Material Agreements and Liens.................................. 71
8.13 Environmental Matters.......................................... 72
8.14 Capitalization................................................. 73
8.15 Subsidiaries, Etc.............................................. 73
8.16 Title to Assets................................................ 74
8.17 True and Complete Disclosure................................... 74
8.18 Real Property.................................................. 75
Section 9. Covenants of the Borrower...................................... 75
9.01 Financial Statements Etc....................................... 75
9.02 Litigation..................................................... 79
9.03 Existence, Etc................................................. 80
9.04 Insurance...................................................... 81
9.05 Prohibition of Fundamental Changes............................. 81
9.06 Limitation on Liens............................................ 85
9.07 Indebtedness................................................... 87
9.08 Investments.................................................... 87
9.09 Restricted Payments............................................ 88
9.10 Certain Financial Covenants.................................... 89
9.11 Subordinated Indebtedness...................................... 91
9.12 Lines of Business.............................................. 92
9.13 Transactions with Affiliates................................... 92
9.14 Use of Proceeds................................................ 92
9.15 Certain Obligations Respecting Subsidiaries.................... 93
(ii)
<PAGE>
Page
9.16 Modifications of Certain Documents............................. 95
9.17 Obligations relating to Collateral Security.................... 95
Section 10. Events of Default............................................. 96
Section 11. The Administrative Agent......................................101
11.01 Appointment, Powers and Immunities............................101
11.02 Reliance by Administrative Agent..............................102
11.03 Defaults......................................................102
11.04 Rights as a Lender............................................103
11.05 Indemnification...............................................103
11.06 Non-Reliance on Administrative Agent and Other
Lenders....................................................103
11.07 Failure to Act................................................104
11.08 Resignation or Removal of Administrative Agent................104
11.09 Consents under Other Loan Documents...........................105
Section 12. Miscellaneous.................................................105
12.01 Waiver........................................................105
12.02 Notices.......................................................105
12.03 Expenses, Etc.................................................106
12.04 Amendments, Etc...............................................107
12.05 Successors and Assigns........................................108
12.06 Assignments and Participations................................108
12.07 Survival......................................................112
12.08 Captions......................................................112
12.09 Counterparts..................................................112
12.10 Governing Law; Submission to Jurisdiction.....................113
12.11 Waiver of Jury Trial..........................................113
12.12 Treatment of Certain Information;
Confidentiality............................................113
12.13 Limitation of Liability of Partners...........................114
(iii)
<PAGE>
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Subsidiaries and Investments
SCHEDULE III - Real Property
SCHEDULE IV - Partnership and Other Equity Interests of the
Borrower
SCHEDULE V - Litigation
SCHEDULE VI - Taxes
SCHEDULE VII - Environmental Matters
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT B - Form of Amendment No. 1 to Security Agreement
EXHIBIT C - Form of of Special New York Counsel to the
Obligors
EXHIBIT D - Form of Opinion of Special New York Counsel to
Chase
EXHIBIT E - Form of Guarantee Assumption Agreement
EXHIBIT F - Form of Confidentiality Agreement
EXHIBIT G - Form of Assignment and Acceptance
(iv)
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 5,
1996 between: PANAVISION INTERNATIONAL, L.P., a Delaware limited partnership
(the "Borrower"); each of the Subsidiaries of the Borrower identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereof and each
Subsidiary of the Borrower that becomes a "Subsidiary Guarantor" after the
Effective Date pursuant to Section 9.15(a) hereof (individually, a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors" and, together with the
Borrower, the "Obligors"); each of the lenders that is a signatory hereto
identified under the caption "LENDERS" on the signature pages hereto and each
lender that becomes a "Lender" after the Effective Date pursuant to Section
12.06(b) hereof (individually, a "Lender" and, collectively, the "Lenders"); and
THE CHASE MANHATTAN BANK, as agent for the Lenders (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
The Borrower, the Subsidiary Guarantors, the Lenders, and the
Administrative Agent are parties to an Amended and Restated Credit Agreement
dated as of September 10, 1996 (as heretofore modified and supplemented and in
effect on the date of this Agreement, the "Existing Credit Agreement")
providing, subject to the terms and conditions thereof, for the making of
revolving credit and term loans to the Borrower. The parties hereto now wish to
amend the Existing Credit Agreement by, among other things, decreasing the
amount of credit available thereunder to $100,000,000, by prepaying in full a
portion of the Existing Facility A Term Loans (as hereinafter defined) and all
of the Existing Facility B Term Loans (as hereinafter defined) outstanding under
the Existing Credit Agreement, by increasing the aggregate amount of the
Revolving Credit Commitments and by amending certain of the other provisions
thereof and, in that connection, wish to amend and restate the Existing Credit
Agreement in its entirety, it being the intention of the parties hereto that the
loans outstanding under the Existing Credit Agreement on the Effective Date (as
hereinafter defined) (other than a portion of the Existing Facility A Term Loans
and all of the Existing Facility B Term Loans) shall continue and remain
outstanding and not be repaid on the Effective Date, but shall be assigned and
reallocated among the Lenders as provided in Section 2.01 hereof.
Accordingly, the parties hereto hereby agree that the Existing
Credit Agreement shall, as of the date hereof (but subject to the satisfaction
of the conditions precedent specified in Section 7 hereof), be amended and
restated in its entirety as follows:
Credit Agreement
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Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"Acquired Entity" shall mean any business, assets or Person subject
to an Acquisition permitted under Section 9.05(b)(iv) hereof.
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which either or
both of the Borrower and/or any of its Subsidiaries (a) acquires any going
business or all or substantially all of the assets of any corporation,
partnership, joint venture or other firm or any division of any corporation,
partnership, joint venture or other firm or the right to use or manage or
otherwise exploit any such business or assets, whether through purchase or lease
of assets, merger or otherwise, (b) directly or indirectly acquires control of
at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors or (c) directly
or indirectly acquires control of a majority ownership interest in any
partnership, joint venture or other firm. The terms "Acquire" and "Acquired"
used as a verb shall have a correlative meaning.
"Affiliate" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), provided that, in any
event, any Person that owns directly or indirectly securities having 5% or more
of the voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual
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shall be an Affiliate solely by reason of his or her being a director, officer
or employee of the Borrower or any of its Subsidiaries and (b) none of the
Wholly Owned Subsidiaries of the Borrower shall be Affiliates.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or such
other office of such Lender (or of an affiliate of such Lender) as such Lender
may from time to time specify to the Administrative Agent and the Borrower as
the office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean, with respect to Revolving Credit
Loans and Term Loans of any Type during any Accrual Period (as defined below),
the respective rates indicated below for such Loans of such Type opposite the
applicable Total Debt Ratio indicated below for such Accrual Period:
Range Applicable Margin (% p.a.)
of --------------------------
Total Debt Ratio Base Rate Loans Eurodollar Loans
---------------- --------------- ----------------
Greater than
3.75 to 1 0.75% 2.00%
Greater than 3.25
to 1 but less than
or equal to 3.75 to 1 0.50% 1.75%
Greater than 2.75
to 1 but less than
or equal to 3.25 to 1 0.25% 1.50%
Greater than 2.25
to 1 but less than
or equal to 2.75 to 1 0% 1.25%
Greater than or equal to
1.75 to 1 but less than
or equal to 2.25 to 1 0% 1.00%
Less than 1.75 to 1 0% 0.75%.
For purposes of this definition and the definition of "Applicable Fee Rate", an
"Accrual Period" shall mean the period commencing during any fiscal quarter on
the date (the "Change Date") that is the third Business Day following the
receipt by the Administrative Agent of the certificate referred to in the next
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following paragraph to but not including the Change Date in the immediately
following fiscal quarter, provided that the initial Accrual Period shall
commence on the Effective Date and continue until the Change Date during the
fiscal quarter commencing January 1, 1997.
The Total Debt Ratio for the initial Accrual Period shall be
determined on the basis of the certificate of a Senior Officer delivered
pursuant to Section 7.01(i) hereof. The Total Debt Ratio for any Accrual Period
after the initial Accrual Period shall be determined on the basis of a
certificate of a Senior Officer setting forth a calculation of the Total Debt
Ratio as at the last day of the fiscal quarter ending immediately prior to the
first day of such Accrual Period, each of which certificates shall be delivered
together with the financial statements for the fiscal quarter on which such
calculation is based, provided that, with respect to the last fiscal quarter of
a fiscal year of the Borrower, the Borrower may (but shall not be required to)
provide such certificate and accompanying unaudited financial statements for
such fiscal quarter (of the type contemplated by Section 9.01(b) hereof) to the
Administrative Agent prior to the delivery of the audited financial statements
of the Borrower required to be delivered pursuant to Section 9.01(c) hereof and
such certificate shall be the basis for determining the Total Debt Ratio for
purposes of this definition and the definition of "Applicable Fee Rate".
Anything in this Agreement to the contrary notwithstanding, the
Applicable Margin shall be the highest rates provided for above (i.e. 0.75% with
respect to Base Rate Loans and 2.00% with respect to Eurodollar Loans) (i)
during any period when an Event of Default shall have occurred and be
continuing, or (ii) so long as the Borrower shall be in default of its
obligation to deliver any financial statements pursuant to Section 9.01(b) or
9.01(c) hereof.
"Applicable Fee Rate" shall mean, during any Accrual Period (as
defined in the definition of "Applicable Margin" in this Section 1.01), the rate
indicated opposite the applicable Total Debt Ratio indicated below for such
Accrual Period:
Range
of
Total Debt Ratio Applicable Fee Rate (% p.a.)
---------------- ----------------------------
Greater than or
equal to 2.25 to 1 0.375%
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Greater than or equal
to 1.75 to 1 but
less than 2.25 to 1 0.3125%
Less than 1.75 to 1 0.25%
The Total Debt Ratio for each Accrual Period shall be determined as
set forth in the definition of "Applicable Margin" in this Section 1.01.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Fee Rate shall be 0.375% (i) during any period when an Event of
Default shall have occurred and be continuing, or (ii) so long as the Borrower
shall be in default of its obligation to deliver any financial statements
pursuant to Section 9.01(b) or 9.01(c) hereof.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or a Continuation of an Interest Period for, a Eurodollar
Loan or a notice by the Borrower with respect to any such borrowing, payment,
prepayment, Conversion or a Continuation of an Interest Period, that is also a
day on which dealings in Dollar deposits are carried out in the London interbank
market.
Credit Agreement
<PAGE>
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"Capital Expenditures" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of assets capitalized under
Capital Lease Obligations incurred during such period) made by the Borrower or
any of its Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP; provided that in
calculating Capital Expenditures (i) for any period during the fiscal year
ending December 31, 1995, there shall be excluded an amount up to but not
exceeding $3,400,000 for any leasehold improvements in respect of the premises
subject to the Woodland Hills Lease made during such period, (ii) for any period
during the fiscal year ending December 31, 1996, there shall be excluded an
amount up to but not exceeding $1,000,000 for any additional leasehold
improvements in respect of the premises subject to the Woodland Hills Lease made
during such period and (iii) there shall be excluded any expenditure to the
extent made with the proceeds of any Casualty Event or any Excluded Disposition.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning assigned to such term in Section 1.03
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Account" shall have the meaning assigned to such term in
Section 4.01 of the Security Agreement.
"Commitments" shall mean, collectively, the Revolving Credit
Commitments and the Term Loan Commitments.
Credit Agreement
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"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"Debt Service" shall mean, for any period, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all regularly scheduled payments of
principal of Indebtedness (including, without limitation, the principal
component of any payments in respect of Capital Lease Obligations) made during
such period plus (b) all Interest Expense for such period.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period
(calculated after eliminating extraordinary gains and losses and unusual items)
plus (b) income and other taxes (to the extent deducted in determining net
income) for such period plus (c) depreciation and amortization and other
non-cash charges (to the extent deducted in determining net income) for such
period plus (d) the aggregate amount of Interest Expense for such period minus
(e) the aggregate amount of interest income for such period plus (f) the
aggregate amount of upfront or one-time fees or expenses payable in respect of
Interest Rate Protection Agreements during such period (to the extent deducted
in determining net income for such period) plus (g) the amount of unrealized
foreign exchange losses (net of any gains) (or minus the amount of unrealized
foreign exchange gains (net of any losses)); provided that there shall be added
back to
Credit Agreement
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the calculation of EBITDA (i) for any period during the fiscal year ending
December 31, 1995, an amount up to but not exceeding $1,800,000 for any income
statement provision created for the termination of the Tarzana, California lease
and an amount up to but not exceeding $1,700,000 for any non-cash income
statement provision created in respect of the revaluation of premises located at
Wycombe Road, Wembley, Middlesex, England, in each case during such period and
(ii) for any period during the fiscal year ending December 31, 1995 and on an
ongoing basis, non-cash minority interests related to Panavision Canada Holdings
Inc., all (but only) to the extent deducted in calculating EBITDA for such
period.
"Effective Date" shall mean the date hereof, subject to the
satisfaction of the conditions to effectiveness set forth in Section 7.01
hereof.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, Releases or threatened Releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, generation, recycling, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or toxic or hazardous substances or wastes (or the effect of the same on human
health or safety).
"Equity Issuance" shall mean (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the Original Closing Date of (i) any
of its capital stock, (ii) any warrants or options exercisable in respect of its
capital stock (other than any warrants or options issued to directors, officers
or employees of the Borrower or any of its Subsidiaries pursuant to employee
benefit plans established in the ordinary course of business and any capital
stock of the Borrower issued upon the exercise of such warrants or options) or
(iii) any other security or instrument representing an equity interest (or the
right to obtain any equity interest) in the Borrower or any of its Subsidiaries
or (b) the receipt by the Borrower or any of its Subsidiaries after the Original
Closing Date of any capital contribution (whether or not evidenced by any equity
security issued by the recipient of such contribution) or (c) any Public Equity
Offering; provided that Equity Issuance shall not include
Credit Agreement
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(w) any such issuance or sale by any Subsidiary of the Borrower to the Borrower
or any Subsidiary of the Borrower, (x) any capital contribution by the Borrower
or any Subsidiary of the Borrower to any Subsidiary of the Borrower, (y) any
issuance of convertible subordinated debt that constitutes Subordinated
Indebtedness issued in accordance with Section 9.11(a) hereof or (z) any
issuance of equity securities upon the exercise of any conversion right with
respect to such convertible subordinated debt.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which the Borrower is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which the Borrower is a member.
"Eurodollar Base Rate" shall mean, for any Interest Period for any
Eurodollar Loan, the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/16 of 1%), as determined by the Administrative Agent, of the rates per
annum quoted by the respective Reference Lenders at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) on the date two Business Days
prior to the first day of such Interest Period for the offering by the
respective Reference Lenders to leading banks in the London interbank market of
Dollar deposits having a term comparable to such Interest Period and in an
amount comparable to the respective principal amount of such Loan to be made by
the respective Reference Lenders for such Interest Period. If any Reference
Lender is not participating in any Eurodollar Loan during any Interest Period
therefor, the Eurodollar Base Rate for such Interest Period shall be determined
by reference to the amount of the Loan that such Reference Lender would have
made or had outstanding during such Interest Period had it been
Credit Agreement
<PAGE>
- 10 -
participating in such Loan during such Interest Period. If any Reference Lender
does not timely furnish the information required for determination of any
Eurodollar Base Rate, the Administrative Agent shall determine such Eurodollar
Base Rate on the basis of the information timely furnished by the remaining
Reference Lenders.
"Eurodollar Loans" shall mean Loans that bear interest at rates
based on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"Eurodollar Rate" shall mean, for any Interest Period for any
Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Section 10 hereof.
"Excess Cash Flow" shall mean, for any period, (a) EBITDA for such
period minus (b) the sum of (i) the aggregate amount of Debt Service for such
period plus (ii) taxes payable in cash in respect of such period (or, so long as
the Borrower is organized as a partnership, the Tax Payment Amount payable in
respect of such period) plus (iii) Capital Expenditures made during such period
(except for any such Capital Expenditures to the extent financed with the
proceeds of Indebtedness, or Capital Lease Obligations, incurred pursuant to
Section 9.07(e) hereof during such period) plus (iv) any increase (or minus any
decrease) in Working Capital from the beginning of such period to the end of
such period plus (v) cash receipts during such period in respect of any gains to
the extent not required pursuant to Section 2.10(a) or 2.10(d) hereof to be
applied to the prepayment of Loans and/or the reduction of Commitments (or minus
cash receipts during such period in respect of losses relating thereto) plus
(vi) the aggregate amount of prepayments made under Section 2.09 hereof during
such period plus (vii) the amount of any Restricted Payment (other than any
taxes payable in cash pursuant to clause (i) of this definition) paid during
such period as permitted pursuant to Section 9.09 hereof.
"Excluded Disposition" shall mean any Disposition of any Property
(a) sold or disposed of in the ordinary course of business and on ordinary
business terms (including sales of inventory and obsolete, worn-out or surplus
Property) and (b) any other dispositions of Property, to the extent that the
proceeds of such disposition are used to acquire other Property used or
Credit Agreement
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useful in the business of the Borrower or any of its Subsidiaries within a
period of 60 days after the end of the fiscal quarter in which such disposition
was made.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the recitals to this Agreement.
"Existing Lenders" shall mean Chase, ______________.
"Existing Facility A Term Loans" shall mean the "Facility A Term
Loans" under, and as defined in, the Existing Credit Agreement which are
outstanding thereunder immediately prior to the Effective Date.
"Existing Facility B Term Loans" shall mean the "Facility B Term
Loans" under, and as defined in, the Existing Credit Agreement which are
outstanding thereunder immediately prior to the Effective Date.
"Existing Revolving Credit Commitments" shall mean the "Revolving
Credit Commitments" under, and as defined in, the Existing Credit Agreement in
effect immediately prior to the Effective Date.
"Existing Revolving Credit Loans" shall mean the "Revolving Credit
Loans" under, and as defined in, the Existing Credit Agreement which are
outstanding thereunder immediately prior to the Effective Date.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Charges" shall mean, for any period, the sum of (i) Debt
Service for such period plus (ii) taxes payable in cash in respect of such
period (or, so long as the Borrower is
Credit Agreement
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organized as a partnership, the Tax Payment Amount payable in respect of such
period).
"Fixed Charges Ratio" shall mean, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date minus Capital Expenditures for such period to
(b) Fixed Charges for such period; provided that in calculating the Fixed
Charges Ratio on any date after the Original Closing Date and prior to the first
anniversary thereof, the relevant period for measuring EBITDA, Capital
Expenditures and Fixed Charges shall be the period from and including April 29,
1996 to and including such calculation date.
"Foreign Subsidiary" shall have the meaning assigned to such term in
Section 9.15(a) hereof.
"GAAP" shall mean generally accepted accounting principles applied
on a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"General Partner" shall mean Panavision Inc. and such other Person
or Persons as may become a general partner of the Borrower from time to time.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"Guarantee Assumption Agreement" shall mean a Guarantee Assumption
Agreement substantially in the form of Exhibit E hereto by an entity that,
pursuant to Section 9.15(a) hereof is
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required to become a "Subsidiary Guarantor" hereunder in favor of the
Administrative Agent.
"Hazardous Material" shall mean, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants" or "pollutants" under any
Environmental Law and (c) any other chemical or other material or substance,
exposure to which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services (including in
respect of non-competition agreements), other than trade accounts payable (other
than for borrowed money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are payable within 180
days of the date the respective goods are delivered or the respective services
are rendered; (c) Indebtedness of others secured by a Lien on the Property of
such Person, whether or not the respective indebtedness so secured has been
assumed by such Person; (d) obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of such
Person; and (f) Indebtedness of others Guaranteed by such Person.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated November, 1996 prepared by the Borrower with respect to the
credit facilities referred to in this Agreement.
"Initial Public Equity Offering" shall mean the initial Public
Equity Offering.
"Interest Coverage Ratio" shall mean, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date
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minus Capital Expenditures for such period to (b) Interest Expense of the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) for such period, provided that, in
calculating the Interest Coverage Ratio on any date after the Original Closing
Date and prior to the first anniversary thereof, the relevant period for
measuring EBITDA, Capital Expenditures and Interest Expense of the Borrower and
its Subsidiaries shall be the period from and including April 29, 1996 to and
including such calculation date.
"Interest Expense" shall mean, for any period, the sum, for any
Person and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations but excluding any
capitalized financing costs) accrued or capitalized during such period (whether
or not actually paid during such period), but excluding any non-cash interest
plus (b) the net amount payable (or minus the net amount receivable) under
Interest Rate Protection Agreements during such period (whether or not actually
paid or received during such period). For purposes hereof, the aggregate amount
of upfront or one-time fees or expenses payable in respect of Interest Rate
Protection Agreements shall be amortized over the life of the respective
Interest Rate Protection Agreements in equal installments, and only the portion
thereof so amortized during any period shall be treated as "Interest Expense"
for such period.
"Interest Period" shall mean, for any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a Base
Rate Loan or (in the event of a Continuation) the last day of the next preceding
Interest Period for such Loan and (subject to the provisions of Section 2.01(d)
hereof) ending on the numerically corresponding day in the first, second, third
or sixth calendar month thereafter, as the Borrower may select as provided in
Section 4.05 hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing:
(i) no Interest Period for any Revolving Credit Loan may commence
before and end after any Revolving Credit Commitment Reduction Date
unless, after giving effect thereto, the aggregate principal amount of the
Revolving Credit Loans having Interest Periods that end after such
Revolving Credit Commitment Reduction Date shall be equal to
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or less than the aggregate amount of the Revolving Credit Commitments on
such Commitment Reduction Date;
(ii) no Interest Period for any Term Loan may commence before and
end after any Principal Payment Date unless, after giving effect thereto,
the aggregate principal amount of the Term Loans having Interest Periods
that end after such Principal Payment Date shall be equal to or less than
the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to
be made on such Principal Payment Date;
(iii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, in
the case of an Interest Period for a Eurodollar Loan, if such next
succeeding Business Day falls in the next succeeding calendar month, on
the next preceding Business Day); and
(iv) notwithstanding clauses (i) and (ii) above, no Interest Period
shall have a duration of less than one month and, if the Interest Period
for any Eurodollar Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person); (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Interest Rate Protection Agreement or any "swap
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agreement" (as defined in Section 101(53)(b) of the Bankruptcy Code).
"Issuing Lender" shall mean Chase, as the issuer of Letters of
Credit under Section 2.03 hereof, together with its successors and assigns in
such capacity.
"Letter of Credit" shall have the meaning assigned to such term in
Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Letter of Credit Interest" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Lender) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Lender shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests under said
Section 2.03.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this
Credit Agreement
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Agreement and the other Loan Documents, a Person shall be deemed to own subject
to a Lien any Property that it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents and the Security Documents.
"Loans" shall mean, collectively, the Revolving Credit Loans and the
Term Loans.
"Majority Lenders" shall mean Lenders holding in the aggregate 51%
of the Commitments and Loans.
"Majority Revolving Credit Lenders" shall mean Revolving Credit
Lenders having at least 51% of the aggregate amount of the Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have terminated,
Lenders holding at least 51% of the sum of (a) the aggregate unpaid principal
amount of the Revolving Credit Loans plus (b) the aggregate amount of all Letter
of Credit Liabilities.
"Management Group" shall mean, collectively, William C. Scott, John
S. Farrand and Jeffrey J. Marcketta.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition, prospects or
liabilities of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform its obligations under any of the Loan
Documents to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith.
"Mortgages" shall mean, collectively, (a) the Leasehold Deed of
Trust with respect to the Woodland Hills Lease dated as of May 8, 1996, executed
by the Borrower in favor of the trustee for the benefit of the Administrative
Agent and the Lenders and (b) one or more other mortgages or deeds of trust
executed by the Borrower in favor of the Administrative Agent (or, in the case
of
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a deed of trust, in favor of a trustee, for the benefit of the Administrative
Agent and the Lenders), covering the real property and/or leasehold interests of
the Borrower, in each case, as such mortgages and deeds of trust shall be
modified and supplemented and in effect from time to time.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Borrower
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Borrower and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Borrower and its Subsidiaries
in connection therewith, (B) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property or
contractually required payments to a lessor in respect of such Property
and (C) any income and transfer taxes payable by the Borrower or any of
its Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount of
all cash received by Panavision Inc., the Borrower and/or its Subsidiaries
in respect of such Equity Issuance net of expenses incurred by Panavision
Inc., the Borrower and/or its Subsidiaries in connection therewith; and
(iv) in the case of any issuance or incurrence of Indebtedness, the
aggregate amount of all cash received by the Borrower and its Subsidiaries
in respect of such Indebtedness net of expenses incurred by the Borrower
and its Subsidiaries in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments received by the Borrower and/or its
Subsidiaries directly or indirectly in connection with such Disposition;
provided that: (a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and expenses
paid by the Borrower and/or its Subsidiaries in connection with
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such Disposition and (ii) any foreign, U.S. Federal, state and local income or
other taxes (including sales and value added taxes and including taxes payable
in connection with the transfer of funds to the Borrower or any of its
Subsidiaries in connection with a prepayment pursuant to Section 2.10(d) hereof)
estimated to be payable by the Borrower and its Subsidiaries as a result of such
Disposition; (b) Net Cash Payments shall be net of any repayments by the
Borrower and/or any of its Subsidiaries of Indebtedness to the extent that (i)
such Indebtedness is secured by a Lien on the Property that is the subject of
such Disposition and (ii) the transferee of (or holder of a Lien on) such
Property requires that such Indebtedness be repaid as a condition to the
purchase of such Property; and (c) Net Cash Payments shall be net of appropriate
amounts to be provided by the Borrower and/or any of its Subsidiaries as a
reserve (whether or not contained in an escrow or similar arrangement) against
any liabilities associated with such Disposition and retained by the Borrower
and/or any such Subsidiary after such Disposition, including pension and other
post-retirement liabilities, liabilities relating to environmental matters and
liabilities under indemnification obligations associated with such Disposition.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Term Loan Notes.
"Original Closing Date" shall mean the date (May 8, 1996) upon which
the initial extension of credit under the Original Credit Agreement was made.
"Original Credit Agreement" shall mean the Credit Agreement dated
May 8, 1996 between the Borrower, the Subsidiary Guarantors, the lenders party
thereto, and the Administrative Agent.
"Panavision Inc." shall mean Panavision Inc. (formerly named WP/GP,
Inc.), a Delaware corporation.
"Partners" shall mean, collectively, the General Partner and the
limited partners of the Borrower from time to time.
"Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of Panavision International, L.P. dated as of
May 8, 1996 between the General Partner and the limited partners party thereto,
as the same may, subject to Section 9.16 hereof, be modified and supplemented
and in effect from time to time.
Credit Agreement
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"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean, with respect to any Person: (a)
direct obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or of any agency thereof, in either case maturing not more than 360
days from the date of acquisition thereof; (b) U.S. dollar denominated (or, with
respect to Foreign Subsidiaries, U.S. dollar denominated and non-U.S. dollar
denominated) time deposits and certificates of deposit of (i) any Lender or (ii)
any domestic (or, with respect to Foreign Subsidiaries, any domestic or
nondomestic) bank or trust company having capital, surplus and undivided profits
of at least $500,000,000, maturing not more than 360 days from the date of
acquisition thereof; (c) repurchase obligations with respect to obligations of
the type (but not necessarily the maturity) described in clause (a) above issued
by any bank or trust company described in clause (b) above and maturing not more
than 270 days from the date of acquisition thereof by such Person; (d)
commercial paper rated A-1 or better or P-1 by Standard & Poor's Ratings Group,
a Division of The McGraw Hill Companies, Inc., or Moody's Investors Services,
Inc., respectively, maturing not more than 90 days from the date of acquisition
thereof; (e) interests in any money market mutual fund registered under the
Investment Company Act of 1940, as amended, the portfolio of which is limited to
obligations described in the foregoing clauses (a), (b), (c) and (d), so long as
such fund has total assets of at least $1,000,000,000 and is rated AAAm-G or
better or AAA or better by Standard & Poor's Ratings Group or Moody's Investors
Services, Inc., respectively; and (f) the Warburg Pincus Cash Reserve Fund, so
long as substantially all of the investments in the portfolio of such Fund
consist of obligations (i) which are of the type referred to in the foregoing
clauses (a), (b), (c) and (d), and (ii) which mature within one year of the date
upon which they are acquired; in each case so long as the same (x) provide for
the payment of principal and interest (and not principal alone or interest
alone) and (y) are not subject to any contingency regarding the payment of
principal or interest.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
Credit Agreement
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"Plan" shall mean an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2% plus the
Base Rate as in effect from time to time plus the Applicable Margin for Base
Rate Loans, provided that, with respect to principal of a Eurodollar Loan that
shall become due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
hereof and, thereafter, the rate provided for above in this definition.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the principal office of Chase in New York, New York as its
prime commercial lending rate.
"Principal Payment Dates" shall mean the Quarterly Dates falling on
or nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with December 31, 1997 through and including December 31, 2002.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Public Equity Offering" means an underwritten primary public
offering of the common stock of Panavision Inc. pursuant to an effective
registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Purchase Price" shall mean with respect to any acquisition under
Section 9.05(b)(iv) hereof, an amount equal to the sum of (i) the aggregate
consideration, whether cash, Property or securities (including, without
limitation, any Indebtedness incurred pursuant to Section 9.07(e) hereof), paid
or delivered by the Borrower and its Subsidiaries (but excluding any fees or
expenses payable) in connection with such acquisition plus (ii) the aggregate
amount of liabilities of the Acquired Entity (net of current assets of the
Acquired Entity) that would be reflected on a balance sheet (if such were to be
prepared) of the Borrower and its Subsidiaries after giving effect to such
acquisition.
Credit Agreement
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"Quarterly Dates" shall mean the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the Effective Date.
"Reference Lenders" shall mean Chase and each other Lender (if any)
designated as such by the Administrative Agent after the Effective Date (or
their respective Applicable Lending Offices, as the case may be).
"Registered Holder" shall have the meaning assigned to such term in
Section 5.07(a)(ii) hereof.
"Registered Loan" shall have the meaning assigned to such term in
Section 2.08(f) hereof.
"Registered Note" shall have the meaning assigned to such term in
Section 2.08(f) hereof.
"Regulations A, D, G, T, U and X" shall mean, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the Original Closing Date in Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks or other financial institutions including such Lender of or under
any Federal, state or foreign law or regulations (whether or not having the
force of law and whether or not failure to comply therewith would be unlawful)
by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time, the obligations
of the Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
or through ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata.
Credit Agreement
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"Reserve Requirement" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate for any
Interest Period for any Eurodollar Loans is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or (ii) any category
of extensions of credit or other assets that includes Eurodollar Loans.
"Restricted Payment" shall mean distributions or dividends (in cash,
Property or obligations) on, or other payments on account of, or the setting
apart of money for a sinking or other analogous fund for, or the purchase,
redemption, retirement or other acquisition of, partnership or other ownership
interests in, or any shares of any class of stock of, the Borrower or of any
warrants, options or other rights to acquire the same (or to make any payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market or equity value of the Borrower or
any of its Subsidiaries), but excluding distributions or dividends (or options
therein) payable solely in partnership interests or shares of capital stock of
the Borrower.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"Revolving Credit Commitment" shall mean, as to each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans, and
to issue or participate in Letters of Credit pursuant to Section 2.03 hereof, in
an aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on the signature pages
hereof under the caption "Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
Credit Agreement
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instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced at any time or from time to time pursuant to Section 2.04 or
2.10 hereof). The original aggregate principal amount of the Revolving Credit
Commitments is $70,000,000.
"Revolving Credit Commitment Percentage" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean the
Quarterly Date falling on or nearest to December 31, 2002.
"Revolving Credit Commitment Reduction Dates" shall mean the
Quarterly Date falling on or nearest to March 31, 1998 and each Quarterly Date
thereafter to and including the Revolving Credit Commitment Reduction Date.
"Revolving Credit Loans" shall mean the loans provided for in
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" shall mean the promissory notes provided
for in Section 2.08(a) hereof and all promissory notes delivered in substitution
or exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time. The term "Revolving Credit Notes"
shall include any Registered Notes evidencing Revolving Credit Loans executed
and delivered pursuant to Section 2.08(f) hereof.
"Security Agreement" shall mean the Security Agreement dated as of
May 8, 1996, between the Borrower, certain of the other Obligors and the
Administrative Agent, as amended by Amendment No. 1 thereto in substantially the
form attached as Exhibit B hereto and as the same shall be further modified and
supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the Security
Agreement, the Mortgages, the U.K. Pledge Agreement, all Uniform Commercial Code
financing statements required by the Security Agreement or the Mortgages to be
filed with respect to the security interests in personal Property and fixtures
created pursuant to the Security Agreement or the Mortgages and all filings,
recordings, registrations and/or other similar steps required by the U.K. Pledge
Agreement with respect to the charges created pursuant thereto.
Credit Agreement
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"Senior Officer" shall mean (a) for the period during which the
Borrower is organized as a partnership, the Person or Persons exercising the
functions of the chief executive officer or chief financial officer of the
Borrower or the Persons exercising the functions of the chief financial officer,
chief executive officer or vice president of the General Partner of the Borrower
and (b) for the period during which the Borrower is organized as a corporation,
the chief executive officer or chief financial officer of the Borrower (it being
understood that any individual acting in the capacity of a Senior Officer shall
act on behalf of the Borrower and not in his or her individual capacity).
"Significant Subsidiary" shall mean, as at any time, any Subsidiary
of the Borrower that has assets in excess of $2,000,000 at such time (or, if
such Subsidiary's assets are denominated in a currency other than Dollars, the
U.S. dollar equivalent thereof).
"Subordinated Indebtedness" shall mean Indebtedness of the Borrower
or any of its Subsidiaries incurred in accordance with Section 9.11(a) hereof.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Tax Payment Amount" shall mean, for any period, the distributions
in respect of taxes required or permitted to be made pursuant to Section 5.2(c)
of the Partnership Agreement.
"Term Loan Lenders" shall mean (a) on the date hereof, the Lenders
having Term Loan Commitments on the signature pages hereof and (b) thereafter,
the Lenders from time to time holding Term Loan Commitments after giving effect
to any assignments thereof permitted by Section 12.06(b) hereof.
"Term Loan Commitment" shall mean, for each Term Loan Lender, the
obligation of such Lender to make or continue Term
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Loans in an amount up to but not exceeding the amount set opposite the name of
such Lender on the signature pages hereof under the caption "Term Loan
Commitment" or, in the case of any Person that becomes a Term Loan Lender
pursuant to an assignment permitted under Section 12.06(b) hereof, as specified
in the respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced or increased pursuant to an assignment
permitted under Section 12.06(b) hereof). The original aggregate principal
amount of the Term Loan Commitments is $30,000,000.
"Term Loan Notes" shall mean the promissory notes provided for by
Section 2.08(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time. The term "Term Loan Notes" shall include any
Registered Notes evidencing Term Loans executed and delivered pursuant to
Section 2.08(e) hereof.
"Term Loans" shall mean the loans provided for by Section 2.01(b)
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Total Debt Ratio" shall mean, as at any date, the ratio of (a) the
sum, for the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the aggregate amount of all
Indebtedness (including, without limitation, all Subordinated Indebtedness,
except as expressly provided below) as at such date to (b) EBITDA for the period
of four consecutive fiscal quarters ending on, or most recently ended prior to,
such date minus Capital Expenditures for such period; provided that in
calculating Total Debt Ratio for purposes of determining the "Applicable Margin"
and the "Applicable Fee Rate" (and for no other purpose), Indebtedness shall not
include any Subordinated Indebtedness of the Borrower or its Subsidiaries.
"Type" shall have the meaning assigned to such term in Section 1.03
hereof.
"U.K. Pledge Agreement" shall mean the Share Charge Agreement dated
as of May 8, 1996 between the Borrower and the Administrative Agent, as the same
shall be modified and supplemented and in effect from time to time.
"U.S. Person" shall mean a citizen or resident of the United States
of America, a corporation, partnership or other entity created or organized in
or under any laws of the United States of America or any State thereof, or any
estate or trust
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that is subject to Federal income taxation regardless of the source of its
income.
"U.S. Taxes" shall mean any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof.
"Warburg Affiliate" shall mean any Subsidiary of any of the entities
listed in clauses (i) through (v), inclusive, of the definition of "Warburg
Pincus" in this Section 1.01.
"Warburg Pincus" shall mean, collectively: (i) Warburg, Pincus
Capital Company, L.P., a Delaware limited partnership, (ii) Warburg, Pincus
Capital Partners, L.P., a Delaware limited partnership, (iii) Warburg, Pincus
Investors, L.P., a Delaware limited partnership, (iv) Warburg, Pincus & Co., a
New York general partnership, and (v) any other venture banking fund in which
Warburg, Pincus & Co. is the general partner.
"Wholly Owned Subsidiary" shall mean, with respect to any Person,
any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares and, in the case of Panavision Canada
Holdings Inc., shares and/or options for shares issued (or to be issued) to its
management) are directly or indirectly owned or controlled by such Person or one
or more Wholly Owned Subsidiaries of such Person or by such Person and one or
more Wholly Owned Subsidiaries of such Person (it being understood that, in the
case of Panavision Canada Holdings Inc., the issue of such shares and/or options
contemplated above shall not preclude it from being treated as a Wholly-Owned
Subsidiary of the Borrower for purposes of this Agreement).
"Woodland Hills Lease" shall mean the Lease dated June 13, 1995
between Trizec Warner, Inc., as landlord, and the Borrower, as tenant, as
originally in effect and as the same may, subject to Section 9.16 hereof,
thereafter be modified and supplemented and in effect from time to time.
"Working Capital" shall mean, as at such date, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the sum of inventory plus accounts
receivable minus (b) the sum of accounts payable plus accrued expenses at such
date (but exclusive of any accruals relating to leasehold improvements in
respect of the premises subject to the Woodland Hills Lease).
Credit Agreement
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1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in Section 1.02(b) hereof)
be prepared, in accordance with generally accepted accounting principles in the
United States applied on a basis consistent with those used in the preparation
of the latest financial statements furnished to the Lenders hereunder (which,
prior to the delivery of the first financial statements under Section 9.01
hereof, shall mean the audited financial statements as at December 31, 1995
referred to in Section 8.02 hereof). All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of U.S. generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest annual or quarterly financial statements furnished to the Lenders
pursuant to Section 9.01 hereof (or, prior to the delivery of the first
financial statements under Section 9.01 hereof, used in the preparation of the
audited financial statements as at December 31, 1995 referred to in Section 8.02
hereof) unless
(i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements or
(ii) the Majority Lenders shall so object in writing within 30 days
after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01 hereof,
shall mean the audited financial statements referred to in Section 8.02 hereof).
(b) The Borrower shall deliver to the Lenders at the same time as
the delivery of any annual or quarterly financial statement under Section 9.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been
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made in accordance with the last sentence of Section 1.02(a) hereof and (ii)
reasonable estimates of the difference between such statements arising as a
consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 9 hereof, the Borrower will not change
(i) the last day of its fiscal year from December 31 of each year, or (ii) the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Credit Loan or a Term Loan,
each of which constitutes a Class. The "Type" of a Loan refers to whether such
Loan is a Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type.
Loans may be identified by both Class and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. On the Effective Date, (i) the Existing
Revolving Credit Loans held by the Existing Lenders under the Existing Credit
Agreement shall automatically, and without any action on the part of any Person,
be designated as Revolving Credit Loans hereunder, and each of the Existing
Lenders, if any, whose relative proportion of Revolving Credit Commitments
hereunder is increasing over the proportion of Existing Revolving Credit
Commitments held by it under the Existing Credit Agreement (each, an "Increasing
Revolving Credit Lender") shall, by assignments from the Existing Lenders whose
relative proportion of the Revolving Credit Commitments hereunder is decreasing
from its relative proportion of the Existing Revolving Credit Commitments (which
assignments shall be deemed to occur automatically on the Effective Date),
acquire a portion of the Revolving Credit Loans of such Existing Lenders, (ii)
each New Lender that is a Revolving Credit Lender and each Increasing Revolving
Credit Lender severally agrees, on the terms and conditions of this Agreement,
to make (on a non-pro rata basis) a loan under its Revolving Credit Commitment
hereunder to the Borrower in Dollars and/or (iii) the Borrower shall prepay the
Revolving Credit Loans held by the Existing Lenders (on a non-pro rata basis),
such that after giving effect to such assignments, loans and/or prepayments the
Revolving Credit Lenders shall hold
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the Revolving Credit Loans hereunder ratably in accordance with their respective
Revolving Credit Commitments.
From and after the Effective Date, each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make loans
to the Borrower in Dollars during the period from and including the Effective
Date to but not including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the Revolving Credit Commitment of such Lender as in effect from
time to time (such Loans being herein called "Revolving Credit Loans"), provided
that in no event shall the aggregate principal amount of all Revolving Credit
Loans, together with the aggregate amount of all Letter of Credit Liabilities,
exceed the aggregate amount of the Revolving Credit Commitments as in effect
from time to time. Subject to the terms and conditions of this Agreement, during
such period the Borrower may borrow, repay and reborrow the amount of the
Revolving Credit Commitments by means of Base Rate Loans and Eurodollar Loans
and may Convert Revolving Credit Loans of one Type into Revolving Credit Loans
of another Type (as provided in Section 2.09 hereof) or Continue Revolving
Credit Loans of one Type as Revolving Credit Loans of the same Type (as provided
in Section 2.09 hereof). Anything herein to the contrary notwithstanding,
Revolving Credit Loans shall not be available hereunder until such time as the
Term Loan Commitments have been fully utilized.
(b) Term Loans. On the Effective Date, (i) the Existing Facility A
Term Loans held by the Existing Lenders under the Existing Credit Agreement
shall automatically, and without any action on the part of any Person, be
designated as Term Loans hereunder, and each of the Existing Lenders, if any,
whose relative proportion of Term Loan Commitments hereunder is increasing over
the proportion of Existing Facility A Term Loans held by it under the Existing
Credit Agreement (each, an "Increasing Term Loan Lender") shall, by assignments
from the Existing Lenders whose relative proportion of Term Loan Commitments
hereunder is decreasing from its relative proportion of Existing Facility A Term
Loans (which assignments shall be deemed to occur automatically on the Effective
Date), acquire a portion of the Term Loans of such Existing Lenders, (ii) each
New Lender that is a Term Loan Lender and each Increasing Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make (on a
non-pro rata basis) a loan under its Term Loan Commitment hereunder to the
Borrower in Dollars and/or (iii) the Borrower shall prepay the Term Loans held
by the Existing Lenders (on a non-pro rata basis), such that after giving effect
to such assignments, loans and/or prepayments the
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Term Loan Lenders shall hold the Term Loans hereunder ratably in accordance with
their respective Term Loan Commitments.
From and after the Effective Date, the Borrower may Convert Term
Loans of one Type into Term Loans of another Type (as provided in Section 2.09
hereof) or Continue Term Loans of one Type as Term Loans of the same Type (as
provided in Section 2.09 hereof).
(c) Limit on Eurodollar Loans.
(i) On the Effective Date, all "Interest Periods" under the Existing
Credit Agreement in respect of the Existing Revolving Credit Loans and the
Existing Facility A Term Loans shall automatically be terminated, and,
subject to the provisions of paragraph (ii) below, the Borrower shall be
permitted to Continue such Existing Revolving Credit Loans and Existing
Facility A Term Loans as Eurodollar Loans of the appropriate Class
hereunder or to Convert such Existing Revolving Credit Loans and Existing
Facility A Term Loans into Base Rate Loans of the appropriate Class
hereunder.
(ii) Notwithstanding the foregoing, no more than ten separate
Interest Periods in respect of Eurodollar Loans of all Classes from each
Lender may be outstanding at any one time.
2.02 Borrowings. The Borrower shall give the Administrative Agent
notice of each borrowing hereunder as provided in Section 4.05 hereof. Not later
than 1:00 p.m. New York time on the date specified for each borrowing hereunder,
each Lender shall make available the amount of the Loan or Loans to be made by
it on such date to the Administrative Agent, at an account in New York, New York
specified by the Administrative Agent, in immediately available funds, for
account of the Borrower. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower by depositing the same, in immediately available funds, in an
account of the Borrower designated by the Borrower and maintained with Chase at
its principal office in New York, New York.
2.03 Letters of Credit. Subject to the terms and conditions of this
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Borrower, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Lender of letters of credit
(collectively, "Letters of Credit") for account of the
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Borrower or any of its Subsidiaries (as specified by the Borrower), provided
that in no event shall (i) the aggregate amount of all Letter of Credit
Liabilities, together with the aggregate principal amount of the Revolving
Credit Loans, exceed the aggregate amount of the Revolving Credit Commitments as
in effect from time to time, (ii) the outstanding aggregate amount of all Letter
of Credit Liabilities exceed $5,000,000 and (iii) the expiration date (without
giving effect to any extension thereof by reason of an interruption of business)
of any Letter of Credit extend beyond the earlier of the Revolving Credit
Commitment Termination Date and the date eighteen months following the issuance
of such Letter of Credit (provided that any such Letter of Credit may provide
for automatic extensions thereof to a date not later than twelve months beyond
the current expiration date, so long as such extended expiration date is not
later than eighteen months after the date upon which such automatic extension
may no longer be canceled). The following additional provisions shall apply to
Letters of Credit:
(a) The Borrower shall give the Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 30 days
preceding the Revolving Credit Commitment Termination Date) each Letter of
Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or a
standby letter of credit). Upon receipt of any such notice, the
Administrative Agent shall advise each Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by
the Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the then undrawn face amount of such
Letter of Credit. Each Revolving Credit Lender (other than the Issuing
Lender) agrees that, upon the issuance of any Letter of Credit hereunder,
it shall automatically acquire a participation in the Issuing Lender's
liability under such Letter of Credit in an amount equal to such Lender's
Revolving Credit Commitment Percentage of such liability, and each
Revolving Credit Lender (other than the Issuing Lender) thereby shall
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absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and shall be unconditionally obligated to the Issuing
Lender to pay and discharge when due, its Revolving Credit Commitment
Percentage of the Issuing Lender's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify the Borrower (through the Administrative Agent) of the
amount to be paid by the Issuing Lender as a result of such demand and the
date on which payment is to be made by the Issuing Lender to such
beneficiary in respect of such demand. Notwithstanding the identity of the
account party of any Letter of Credit, the Borrower hereby unconditionally
agrees to pay and reimburse the Administrative Agent for account of the
Issuing Lender for the amount of each demand for payment under such Letter
of Credit that is in substantial compliance with the provisions of such
Letter of Credit at or prior to the date on which payment is to be made by
the Issuing Lender to the beneficiary thereunder, without presentment,
demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.03, the Borrower shall advise the Administrative
Agent whether or not the Borrower intends to borrow hereunder to finance
its obligation to reimburse the Issuing Lender for the amount of the
related demand for payment, provided that, unless the Borrower shall
otherwise notify the Administrative Agent within one Business Day of its
receipt of such notice, the Borrower shall be deemed to have requested a
borrowing hereunder in the lowest amount permitted under Section 4.04
which would enable the Borrower to fulfill its payment obligation in
respect of such demand for payment. The proceeds of such borrowing will be
applied automatically to the payment of the Reimbursement Obligation
arising in respect of such demand for payment, with any remaining portion
of such borrowing in excess of the amount of such Reimbursement Obligation
being made available to the Borrower as provided in Section 2.02 hereof.
(e) Each Revolving Credit Lender (other than the Issuing Lender)
shall pay to the Administrative Agent for account of the Issuing Lender at
its principal office in New York, New York in Dollars and in immediately
available funds, the amount of such Lender's Revolving Credit
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Commitment Percentage of any payment under a Letter of Credit upon notice
by the Issuing Lender (through the Administrative Agent) to such Revolving
Credit Lender requesting such payment and specifying such amount. Each
such Revolving Credit Lender's obligation to make such payment to the
Administrative Agent for account of the Issuing Lender under this
paragraph (e), and the Issuing Lender's right to receive the same, shall
be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of any
other Revolving Credit Lender to make its payment under this paragraph
(e), the financial condition of the Borrower (or any other account party),
the existence of any Default or the termination of the Commitments. Each
such payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Revolving Credit
Lender shall default in its obligation to make any such payment to the
Administrative Agent for account of the Issuing Lender, for so long as
such default shall continue the Administrative Agent may at the request of
the Issuing Lender withhold from any payments received by the
Administrative Agent under this Agreement or any Note for account of such
Revolving Credit Lender the amount so in default and, to the extent so
withheld, pay the same to the Issuing Lender in satisfaction of such
defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Lender pursuant to paragraph (e) above in respect of any
Letter of Credit, such Lender shall, automatically and without any further
action on the part of the Administrative Agent, the Issuing Lender or such
Lender, acquire (i) a participation in an amount equal to such payment in
the Reimbursement Obligation owing to the Issuing Lender by the Borrower
hereunder and under the Letter of Credit Documents relating to such Letter
of Credit and (ii) a participation in a percentage equal to such Lender's
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Borrower hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Issuing Lender
pursuant to paragraph (g) of this Section 2.03). Upon receipt by the
Issuing Lender from or for account of the Borrower of any payment in
respect of any Reimbursement Obligation or any such interest or other
amount (including by way of setoff or application of proceeds of any
collateral security) the Issuing Lender shall promptly pay to the
Administrative Agent for account of each Revolving Credit Lender entitled
thereto, such Revolving Credit
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Lender's Revolving Credit Commitment Percentage of such payment, each such
payment by the Issuing Lender to be made in the same money and funds in
which received by the Issuing Lender. In the event any payment received by
the Issuing Lender and so paid to the Revolving Credit Lenders hereunder
is rescinded or must otherwise be returned by the Issuing Lender, each
Revolving Credit Lender shall, upon the request of the Issuing Lender
(through the Administrative Agent), repay to the Issuing Lender (through
the Administrative Agent) the amount of such payment paid to such Lender,
with interest at the rate specified in paragraph (j) of this Section 2.03.
(g) The Borrower shall pay to the Administrative Agent for account
of each Revolving Credit Lender (ratably in accordance with their
respective Commitment Percentages) a letter of credit fee in respect of
each Letter of Credit at a rate per annum equal to the Applicable Margin
for Revolving Credit Loans that are Eurodollar Loans minus 1/4 of 1%, in
respect of the daily average undrawn face amount of such Letter of Credit
for the period from and including the date of issuance of such Letter of
Credit (i) in the case of a Letter of Credit that expires in accordance
with its terms, to and including such expiration date and (ii) in the case
of a Letter of Credit that is drawn in full or is otherwise terminated
other than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made under such
Letter of Credit on such day). In addition, the Borrower shall pay to the
Administrative Agent for account of the Issuing Lender a fronting fee in
respect of each Letter of Credit in an amount equal to 1/4 of 1% per annum
of the daily average undrawn face amount of such Letter of Credit for the
period from and including the date of issuance of such Letter of Credit
(i) in the case of a Letter of Credit that expires in accordance with its
terms, to and including such expiration date and (ii) in the case of a
Letter of Credit that is drawn in full or is otherwise terminated other
than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made under such
Letter of Credit on such day) plus all commissions, charges, costs
Credit Agreement
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and expenses in the amounts customarily charged by the Issuing Lender from
time to time in like circumstances with respect to the issuance of, or
amendments to, each Letter of Credit and drawings and other transactions
relating thereto.
(h) Upon the request of any Revolving Credit Lender from time to
time, the Issuing Lender shall deliver any other information reasonably
requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 7
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Lender consistent
with its then current practices and procedures with respect to letters of
credit of the same type and (ii) the Borrower shall have executed and
delivered such applications, agreements and other instruments relating to
such Letter of Credit as the Issuing Lender shall have reasonably
requested consistent with its then current practices and procedures with
respect to letters of credit of the same type, provided that such
application, agreement or other instrument shall not impose any financial
obligation on the Borrower or any of its Subsidiaries inconsistent with
this Agreement and in the event of any conflict between any such
application, agreement or other instrument and the provisions of this
Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section 2.03
on the due date therefor, such Lender shall pay interest to the Issuing
Lender (through the Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made at
a rate per annum equal to the Federal Funds Rate, provided that if such
Lender shall fail to make such payment to the Issuing Lender within three
Business Days of such due date, then, retroactively to the due date, such
Lender shall be obligated to pay interest on such amount at the
Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
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hereunder unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (ii) each
Revolving Credit Lender shall have consented thereto.
The Borrower hereby indemnifies and holds harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Lender under any Letter of Credit; provided that the Borrower shall
not be required to indemnify any Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Lender in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Lender, such Lender's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended to
limit the other obligations of the Borrower, any Lender or the Administrative
Agent under this Agreement.
2.04 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments shall
be automatically reduced to zero on the Revolving Credit Commitment Termination
Date. In addition, the aggregate amount of the Revolving Credit Commitments
shall be automatically reduced on each Revolving Credit Commitment Reduction
Date set forth in column (A) below to the amount (subject to reduction pursuant
to paragraph (c) below) set forth in column (B) below opposite such Revolving
Credit Commitment Reduction Date:
(A) (B)
Revolving Credit Revolving Credit
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts
-------------- ----------
March 31, 1998 68,250,000
June 30, 1998 66,500,000
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September 30, 1998 64,750,000
December 31, 1998 63,000,000
March 31, 1999 59,062,500
June 30, 1999 55,125,000
September 30, 1999 51,187,500
December 31, 1999 47,250,000
March 31, 2000 43,312,500
June 30, 2000 39,375,000
September 30, 2000 35,437,500
December 31, 2000 31,500,000
March 31, 2001 27,562,500
June 30, 2001 23,625,000
September 30, 2001 19,687,500
December 31, 2001 15,750,000
March 31, 2002 11,812,500
June 30, 2002 7,875,000
September 30, 2002 3,937,500
December 31, 2002 0
(b) The Borrower shall have the right at any time or from time to
time (i) so long as no Revolving Credit Loans or Letter of Credit Liabilities
are outstanding, to terminate the Revolving Credit Commitments, (ii) to reduce
the aggregate unutilized amount of the Revolving Credit Commitments (for which
purpose use of the Revolving Credit Commitments shall be deemed to include the
aggregate amount of Letter of Credit Liabilities) and (iii) to terminate the
Term Loan Commitments; provided that (x) the Borrower shall give notice of each
such termination or reduction as provided in Section 4.05 hereof and (y) each
partial reduction of either the Revolving Credit Commitments or the Term Loan
Commitments shall be in an aggregate amount at least equal to $5,000,000 (or a
larger multiple of $1,000,000). In addition, the Revolving Credit Commitments
shall be automatically reduced to the extent required pursuant to Section
2.10(f) hereof.
(c) Each partial reduction in the aggregate amount of the Revolving
Credit Commitments pursuant to paragraph (b)(ii) above, or Section 2.10(f)
hereof, on any date shall be applied to scheduled reductions in the Revolving
Credit Commitments ratably as follows: each such reduction shall result in an
automatic and simultaneous reduction (but not below zero) of the aggregate
amount of Revolving Credit Commitments set forth in column (B) in paragraph (a)
above (ratably in accordance with the respective remaining amounts thereof,
after giving effect to any prior reductions pursuant to this paragraph (c)).
Credit Agreement
<PAGE>
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(d) Any portion of the Term Loan Commitments not used on the
Effective Date shall be automatically terminated on the Effective Date.
(e) The Commitments once terminated or reduced may not be
reinstated.
2.05 Commitment Fee. The Borrower shall pay to the Administrative
Agent for account of each Revolving Credit Lender commitment fee on the daily
average unutilized amount of such Lender's Revolving Credit Commitment (for
which purpose the aggregate amount of any Letter of Credit Liabilities shall be
deemed to be a pro rata (based on the Revolving Credit Commitments) use of each
Lender's Revolving Credit Commitment), for the period from and including the
Effective Date to but not including the earlier of the date such Revolving
Credit Commitment is terminated and the Revolving Credit Commitment Termination
Date, at the Applicable Fee Rate during each Accrual Period. Notwithstanding
anything to the contrary contained in the Existing Credit Agreement, the accrued
commitment fee payable under Section 2.05 of the Existing Credit Agreement shall
be payable on the Effective Date.
2.06 Lending Offices. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07 Several Obligations; Remedies Independent. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender.
Anything in this Agreement to the contrary notwithstanding, each
Lender hereby agrees with each other Lender that no Lender shall take any action
to protect or enforce its rights arising out of this Agreement or the Notes
(including, without limitation, exercising any rights of off-set) without first
obtaining the prior written consent of the Administrative Agent or the Majority
Lenders, it being the intent of the Lenders that any such action to protect or
enforce rights under this Agreement and the Notes shall be taken in concert and
at the direction or with the consent of the Administrative Agent or the Majority
Lenders and not individually by a single Lender.
Credit Agreement
<PAGE>
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2.08 Notes.
(a) The Revolving Credit Loans (other than Registered Loans) made or
continued by each Lender shall be evidenced by a single promissory note of the
Borrower substantially in the form of Exhibit A-1 hereto, dated the Effective
Date, payable to such Lender in a principal amount equal to the amount of its
Revolving Credit Commitment as in effect on the Effective Date and otherwise
duly completed.
(b) The Term Loans (other than Registered Loans) made or continued
by each Lender shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit A-2 hereto, dated the Effective Date,
payable to such Lender in a principal amount equal to the amount of its Term
Loan Commitment as in effect on the Effective Date and otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any Note
evidencing the Loans of such Class held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; provided that the
failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(d) No Lender shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment, Loans and Notes pursuant to
Section 12.06 hereof and except as provided in Section 2.07(f) hereof (and, if
requested by any Lender, the Borrower agrees to so exchange any Note).
(e) Notwithstanding the foregoing, any Lender that is not a U.S.
Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to record on the Register referred to in Section
12.06(g) hereof any Loans of any Class held by such Lender under this Agreement.
Loans recorded on the Register ("Registered Loans") may not be evidenced by
promissory notes other than Registered Notes as defined below and, upon the
registration of any Loan, any promissory note (other than a
Credit Agreement
<PAGE>
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Registered Note) evidencing the same shall be null and void and shall be
returned to the Borrower. The Borrower agrees, at the request of any Lender that
is the holder of Registered Loans, to execute and deliver to such Lender a
promissory note in registered form to evidence such Registered Loans (i.e.,
containing the optional registered note language as indicated in Exhibit A-1 or
A-2 hereto, as the case may be) and registered as provided in Section 12.06(g)
hereof (herein, a "Registered Note"), dated the date hereof, payable to such
Lender and otherwise duly completed. A Loan once recorded on the Register may
not be removed from the Register so long as it remains outstanding and a
Registered Note may not be exchanged for a promissory note that is not a
Registered Note.
2.09 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04 hereof, the Borrower shall have the right to prepay
Loans, to Convert Loans of one Type into Loans of another Type or to Continue
Eurodollar Loans from one Interest Period to another Interest Period, at any
time or from time to time, provided that: (a) the Borrower shall give the
Administrative Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 4.05 hereof (and, upon the date specified in any such
notice of prepayment, the amount to be prepaid shall become due and payable
hereunder); (b) upon any prepayment or Conversion of Eurodollar Loans other than
on the last day of an Interest Period for such Loans, the Borrower shall pay any
amounts owing under Section 5.05 hereof as a result of such prepayment or
Conversion; (c) any Conversion into or Continuation of Eurodollar Loans shall be
subject to the provisions of Section 2.01(c) hereof; and (d) prepayments of the
Term Loans shall be applied pro rata to the then remaining principal
installments thereof. Notwithstanding the foregoing, and without limiting the
rights and remedies of the Lenders under Section 10 hereof, in the event that
any Event of Default shall have occurred and be continuing, the Administrative
Agent may (and at the request of the Majority Lenders shall) suspend the right
of the Borrower to Convert any Loan into a Eurodollar Loan, or to Continue any
Loan as a Eurodollar Loan, in which event all Loans shall be Converted (on the
last day(s) of the respective Interest Periods therefor) into, or Continued as,
as the case may be, Base Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Casualty Events. Upon the date 90 days following the receipt by
the Borrower or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of the
Credit Agreement
<PAGE>
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Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower
or such Subsidiary, as the case may be, shall have determined not to repair or
replace the Property affected by such Casualty Event), the Borrower shall prepay
the Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (g) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount, if any, equal to 100% of the Net Available
Proceeds of such Casualty Event not theretofore applied (or committed to be
applied pursuant to executed construction contracts or equipment orders) to the
repair or replacement of such Property or to the purchase of other Property used
or useful in the business of the Borrower and its Subsidiaries, such prepayment
and reduction to be effected in each case in the manner and to the extent
specified in paragraph (f) below, provided that, notwithstanding the foregoing,
the Borrower shall not be required to make any prepayment or reduce the
Commitments under this paragraph (a) until such time as the aggregate amount of
the required prepayments and reductions of Commitments hereunder, after
deducting any such amounts previously applied to prepayments and reductions
pursuant to this paragraph (a), shall be greater than or equal to $1,000,000.
Nothing in this paragraph (a) shall be deemed to limit any obligation of the
Borrower and its Subsidiaries pursuant to the Security Agreement to remit to the
Collateral Account the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event, and the Administrative
Agent shall release such proceeds to the Borrower in the manner, and to the
extent, provided in Section 4.01(d) of the Security Agreement.
(b) Equity Issuance. Upon any Equity Issuance after the Effective
Date (other than an Equity Issuance in connection with the exercise of stock
options held by any of the Management Group) at a time when the Total Debt Ratio
is greater than or equal to 3.00 to 1, the Borrower shall prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in paragraph
(g) below), and the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to the lesser of (i) 50% of the Net Available Proceeds of
such Equity Issuance or (ii) the amount of such Net Available Proceeds that,
when applied to the prepayment of Loans as contemplated by this Section 2.10,
will result in the Total Debt Ratio being less than 3.00 to 1, such prepayment
and reduction to be effected in each case in the manner and to the extent
specified in paragraph (f) below.
(c) Excess Cash Flow. Not later than the date 90 days after the end
of each fiscal year of the Borrower ending after the Original Closing Date, the
Borrower shall prepay the Term
Credit Agreement
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Loans in an aggregate amount equal to 60% of Excess Cash Flow for such fiscal
year, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (f) below, provided that Excess Cash
Flow for the fiscal year ending December 31, 1996 shall be determined for
purposes of this Section 2.10(c) only for the period from and after the Original
Closing Date to and including December 31, 1996.
(d) Sale of Assets. Without limiting the obligation of the Borrower
to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to
any Disposition not otherwise permitted hereunder, the Borrower agrees, on or
prior to the occurrence of any Disposition (other than an Excluded Disposition)
in which the Net Available Proceeds of such Disposition shall exceed $250,000
(herein, the "Current Disposition"), to deliver to the Administrative Agent
(which shall promptly forward a copy thereof to the Lenders) a statement,
certified by a Senior Officer, in form and detail reasonably satisfactory to the
Administrative Agent, of the estimated amount of the Net Available Proceeds of
the Current Disposition that will (on the date of the Current Disposition) be
received in cash, in which event the Borrower will prepay the Loans (and/or
provide cover for Letter of Credit Liabilities as specified in paragraph (g)
below), and the Commitments shall be subject to automatic reduction (in each
case in the manner specified in paragraph (f) below as follows:
(i) upon the date of the Current Disposition, in an aggregate amount
equal to 100% of the Net Available Proceeds thereof to the extent received
in cash on the date of the Current Disposition; and
(ii) thereafter, from time to time as the Borrower or any of its
Subsidiaries shall receive Net Available Proceeds during such quarterly
fiscal period in cash under deferred payment or escrow arrangements or
Investments entered into or received in connection with any Disposition,
in an amount equal to (x) 100% of the aggregate amount of such Net
Available Proceeds minus (y) any transaction expenses associated with
Dispositions and not previously deducted in the determination of Net
Available Proceeds plus (or minus, as the case may be) (z) any other
adjustment received or paid by the Borrower or such Subsidiary pursuant to
the respective agreements giving rise to Dispositions and not previously
taken into account in the determination of the Net Available Proceeds of
Dispositions,
provided that, notwithstanding the foregoing, the Borrower shall not be required
to make any prepayment or reduce Commitments
Credit Agreement
<PAGE>
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under this paragraph (d) until such time as the aggregate amount of the required
prepayments and reductions of Commitments pursuant to the foregoing clauses (i)
and (ii) (with respect to the then Current Disposition and all prior
Dispositions as to which a prepayment has not yet been made under this paragraph
(d)), after deducting any such amounts previously applied to prepayments and
reductions of Commitments pursuant to this paragraph (d), shall be greater than
or equal to $1,000,000.
(e) Debt Issuance. Upon any issuance or incurrence of Indebtedness
after the Original Closing Date (other than Indebtedness permitted under
Sections 9.07(a), (b), (d) and (e) hereof), (i) at any time when the Total Debt
Ratio is greater than or equal to 3.00 to 1, in respect of Subordinated
Indebtedness permitted under Section 9.11(a) hereof or (ii) in respect of any
other Indebtedness (other than the Loans), the Borrower shall prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in paragraph
(g) below), and the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 100% of the Net Available Proceeds thereof (or, with
respect to any Subordinated Indebtedness referred to in clause (i) above, the
amount of such Net Available Proceeds that, when applied to the prepayment of
Loans as contemplated by this Section 2.10, will result in the Total Debt Ratio
being less than 3.00 to 1, whichever amount is lesser), such prepayment to be
effected in each case in the manner and to the extent specified in paragraph (f)
below;
(f) Application. Prepayments and reductions of Commitments described
in the above paragraphs of this Section 2.10 shall be applied without penalty or
premium (except for any interest rate breakage costs pursuant to Section 5.05
hereof), first, to repay Term Loans pro rata to the then remaining respective
principal installments and, thereafter, except for prepayments described in
paragraph (c) above, to reduce permanently the aggregate amount of Revolving
Credit Commitments (and, if after such reduction the aggregate principal amount
of Revolving Credit Loans, together with the aggregate amount of Letter of
Credit Liabilities, exceed the aggregate amount of such Revolving Credit
Commitments, to prepay Revolving Credit Loans and/or provide cover for
outstanding letters of credit as provided in paragraph (g) below).
Notwithstanding the foregoing, the amount required to be applied in respect of
the Term Loans under paragraph (c) above shall be applied in respect of such
Term Loans as follows: first, 25% of such amount shall be applied in direct
order of the then remaining principal installments of such Term Loans scheduled
to fall due during the period of 12 months immediately succeeding the date of
such
Credit Agreement
<PAGE>
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application; and, then, the remainder shall be applied as provided above in this
paragraph (f).
(g) Cover for Letter of Credit Liabilities. In the event that the
Borrower shall be required pursuant to this Section 2.10, or pursuant to Section
3.01(a) hereof, to provide cover for Letter of Credit Liabilities, the Borrower
shall effect the same by paying to the Administrative Agent immediately
available funds in an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in the Collateral Account (as provided
therein as collateral security in the first instance for the Letter of Credit
Liabilities) until such time as the Letters of Credit shall have been terminated
and all of the Letter of Credit Liabilities have been paid in full.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) Revolving Credit Loans. The Borrower hereby promises to pay to
the Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Revolving Credit Loans, and each Revolving
Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.
In addition, if following any Revolving Credit Commitment Reduction Date the
aggregate principal amount of the Revolving Credit Loans shall exceed the
Revolving Credit Commitments, the Borrower shall pay principal of the Revolving
Credit Loans in an aggregate amount equal to such excess. In addition, if
following any Revolving Credit Commitment Reduction Date the aggregate principal
amount of the Revolving Credit Loans, together with the aggregate amount of all
Letter of Credit Liabilities, shall exceed the Revolving Credit Commitments, the
Borrower shall, first, prepay Revolving Credit Loans, and, second, provide cover
for Letter of Credit Liabilities in an aggregate amount equal to such excess
(such cover for Letter of Credit Liabilities to be effected in the manner
provided in Section 2.10(h) hereof).
(b) Term Loans. The Borrower hereby promises to pay to the
Administrative Agent for account of the Term Loan Lenders the principal of the
Term Loans in twenty-one installments payable on the Principal Payment Dates as
follows:
Principal Payment Date
Falling on or Nearest to: Amount of Installment ($)
------------------------- -------------------------
December 31, 1997 $5,000,000
Credit Agreement
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March 31, 1998 1,250,000
June 30, 1998 1,250,000
September 30, 1998 1,250,000
December 31, 1998 1,250,000
March 31, 1999 1,250,000
June 30, 1999 1,250,000
September 30, 1999 1,250,000
December 31, 1999 1,250,000
March 31, 2000 1,250,000
June 30, 2000 1,250,000
September 30, 2000 1,250,000
December 31, 2000 1,250,000
March 31, 2001 1,250,000
June 30, 2001 1,250,000
September 30, 2001 1,250,000
December 31, 2001 1,250,000
March 31, 2002 1,250,000
June 30, 2002 1,250,000
September 30, 2002 1,250,000
December 31, 2002 1,250,000
If the Borrower does not borrow the full amount of the aggregate Term Loan
Commitments on the Effective Date, the shortfall shall be applied to reduce the
foregoing installments ratably.
3.02 Interest. The Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin; and
(b) during each Interest Period for such Loan during which such Loan
is a Eurodollar Loan, the Eurodollar Rate for such Interest Period plus
the Applicable Margin.
Notwithstanding the foregoing, the Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on all of the Loans or
Reimbursement Obligations hereunder at the applicable Post-Default Rate on any
principal of any Loan made by such Lender and on any other amount payable by
Credit Agreement
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the Borrower hereunder to or for account of such Lender, that shall not be paid
in full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date thereof
to but excluding the date the same is paid in full. Accrued interest on each
Loan shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Borrower.
Notwithstanding anything to the contrary contained herein or in the
Existing Credit Agreement, accrued interest payable under Section 3.02 of the
Existing Credit Agreement with respect to any of the "Loans" outstanding
thereunder shall be paid on the Effective Date.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrower under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Loan Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent at an
account in New York, New York specified by the Administrative Agent, not later
than 1:00 p.m. New York time on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made to the Administrative Agent when due pursuant to Section 4.01(a) hereof to
any ordinary deposit account of the Borrower with such Lender (with notice to
Credit Agreement
<PAGE>
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the Borrower and the Administrative Agent), provided that such Lender's failure
to give such notice shall not affect the validity thereof.
(c) The Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that the
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(e) hereof, each payment received by the Administrative Agent under
this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 hereof shall be made from the relevant Lenders, each payment of
commitment fee under Section 2.05 hereof in respect of Commitments of a
particular Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
under Section 2.03 hereof shall be applied to the respective Commitments of such
Class of the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (b) except as otherwise provided in
Section 5.04 hereof, Eurodollar Loans of any Class having the same Interest
Period shall be allocated pro rata among the relevant Lenders according to the
amounts of their respective Revolving Credit Commitments and Term Loan
Commitments (in the case of the making of Loans) or their respective Revolving
Credit Loans and Term Loans (in the case of Conversions and Continuations of
Loans); (c) each payment or prepayment of principal of Revolving Credit Loans or
Term Loans by the Borrower
Credit Agreement
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shall be made for account of the relevant Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans of such Class held by them;
and (d) each payment of interest on Revolving Credit Loans and Term Loans by the
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans and commitment fee
and letter of credit fees shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but, except as otherwise
provided in Section 2.03(g) hereof, excluding the last day) occurring in the
period for which payable and interest on Base Rate Loans and Reimbursement
Obligations shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to Section
5.04 hereof, (a) each borrowing, Conversion and partial prepayment of principal
of Base Rate Loans shall be in an aggregate amount at least equal to $1,000,000
or a larger multiple of $100,000 and (b) each borrowing, Continuation,
Conversion or partial prepayment of principal of Eurodollar Loans shall be in an
aggregate amount at least equal to $1,000,000 or a larger multiple of $1,000,000
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of Eurodollar Loans, having different Interest Periods at the same
time hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period), and if any
Eurodollar Loans would otherwise be in a lesser principal amount for any period,
such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than 12:00 noon New York time on the number of Business Days prior to
the date of the relevant
Credit Agreement
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termination, reduction, borrowing, Conversion, Continuation or prepayment or the
first day of such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 5
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that the
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and otherwise as provided
in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Borrower (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more of the
Credit Agreement
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Lenders hereunder (such payment being herein called the "Required Payment"),
which notice shall be effective upon receipt, that the Payor does not intend to
make the Required Payment to the Administrative Agent, the Administrative Agent
may assume that the Required Payment has been made and may, in reliance upon
such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date; and, if the Payor has not
in fact made the Required Payment to the Administrative Agent, the recipient(s)
of such payment shall, on demand, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date (the "Advance Date") such amount was so made
available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
such day and, if such recipient(s) shall fail promptly to make such payment, the
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid, provided that if neither the
recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made by
the Borrower to the Lenders, the Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of the Borrower under Section 3.02 hereof to pay interest
on the Required Payment at the Post-Default Rate), it being understood
that the return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of the Borrower under
said Section 3.02 to pay interest at the Post-Default Rate in respect of
the Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to the Borrower, the Payor and the Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type of such Loan,
it being understood that the return by the Borrower of the Required
Payment to the Administrative Agent shall not limit any claim the Borrower
may have against the Payor in respect of such Required Payment.
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4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness is then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, provided that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any other
Loan Document through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or Letter of Credit Liabilities or such other amounts then due
hereunder or thereunder by such Obligor to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans of such Class or Letter of Credit Liabilities or such
other amounts, respectively, owing to such other Lenders (or in interest due
thereon, as the case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment) pro rata
in accordance with the unpaid principal of and/or interest on the Loans of such
Class or Letter of Credit Liabilities or such other amounts, respectively, owing
to each of the Lenders. To such end all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) The Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights
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of set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or other
amounts (as the case may be) owing to such Lender in the amount of such
participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or its Notes or changes the basis of taxation of any amounts payable
to such Lender under this Agreement or its Notes in respect of any of such
Loans (excluding changes in the rate of tax on the overall net income of
such Lender or of such Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office and excluding any U.S. Taxes that would not be payable under the
proviso in the first paragraph of Section 5.07(a) hereof); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement used in the determination
of the Eurodollar Rate
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for any Interest Period for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of,
such Lender (including, without limitation, any of such Loans or any
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof), or any commitment of such Lender (including, without
limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Borrower under this Section
5.01(a), the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter to make
or Continue Eurodollar Loans, or to Convert Loans of any other Type into
Eurodollar Loans, until the Regulatory Change giving rise to such request ceases
to be in effect (in which case the provisions of Section 5.04 hereof shall be
applicable), provided that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Borrower shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the holding
company of which such Lender is a subsidiary) for any costs that it determines
are attributable to the maintenance by such Lender (or any Applicable Lending
Office or such holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) of any court or
governmental or monetary authority (i) following any Regulatory Change or (ii)
implementing any risk-based capital guideline or other requirement (whether or
not having the force of law and whether or not the failure to comply therewith
would be unlawful) hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such
holding company) to a level below that which such Lender (or any Applicable
Lending Office or such holding company) could have achieved but for such law,
regulation, interpretation, directive or request).
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(c) Each Lender shall notify the Borrower of any event occurring
after the Effective Date entitling such Lender to compensation under Section
5.01(a) or 5.01(b) hereof as promptly as practicable, but in any event within 45
days, after such Lender obtains actual knowledge thereof; provided that (i) if
any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Borrower a certificate setting forth the basis and amount of
each request by such Lender for compensation under Section 5.01(a) or 5.01(b)
hereof. Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a)
hereof, or of the effect of capital maintained pursuant to Section 5.01(b)
hereof, on its costs or rate of return of maintaining Loans or its obligation to
make Loans, or on amounts receivable by it in respect of Loans, and of the
amounts required to compensate such Lender under this Section 5.01, shall be
conclusive, provided that such determinations and allocations are made on a
reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the Eurodollar Base
Rate for any Interest Period for any Eurodollar Loan;
(a) the Administrative Agent determines, which determination shall
be conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) if the Majority Lenders determine, which determination shall be
conclusive, and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof upon the basis of which the rate of
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interest for Eurodollar Loans for such Interest Period is to be determined
are not likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.09
hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from a circumstance described
in Section 5.03 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's
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Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Converted into Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans of the same
Class made by other Lenders are outstanding, such Lender's Base Rate Loans of
such Class shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate Loans and
Eurodollar Loans of such Class are allocated among the Lenders ratably (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments of such Class.
5.05 Compensation. The Borrower shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense (including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans) which such Lender may sustain:
(a) if any payment, mandatory or optional prepayment or Conversion
of a Eurodollar Loan made by such Lender for any reason (including,
without limitation, the acceleration of the Loans pursuant to Section 10
hereof) occurs on a date other than the last day of the Interest Period
for such Loan; or
(b) if the Borrower fails for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
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Calculation of all amounts payable to a Lender under this Section 5.05 shall be
made as though such Lender had actually funded its relevant Eurodollar Loan
through the purchase of a Eurodollar deposit bearing interest at the Eurodollar
Rate in an amount equal to the amount of such Loan, having a maturity comparable
to the relevant Interest Period and through the transfer of such Eurodollar
deposit from an offshore office of such Lender to a domestic office of such
Lender in the United States of America; provided, however, that each Lender may
fund each of its Eurodollar Loans in any manner it sees fit and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this Section 5.05.
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Borrower under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrower shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrower shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) The Borrower agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such
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non-U.S. Person hereunder after deduction for or withholding in respect of any
U.S. Taxes imposed with respect to such payment (or in lieu thereof, payment of
such U.S. Taxes by such non-U.S. Person), will not be less than the amount
stated herein to be then due and payable, provided that the foregoing obligation
to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder (other than in respect of
any Registered Loan) unless such Lender is, on the Effective Date (or on
the date it becomes a Lender hereunder as provided in Section 12.06(b)
hereof) and on the date of any change in the Applicable Lending Office of
such Lender, either entitled to submit a Form 1001 (relating to such
Lender and entitling it to a complete exemption from withholding on all
interest to be received by it hereunder in respect of the Loans) or Form
4224 (relating to all interest to be received by such Lender hereunder in
respect of the Loans),
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "Registered Holder"), unless such Registered Holder
(or, if such Registered Holder is not the beneficial owner of such
Registered Loan, the beneficial owner thereof) is, on the Effective Date
(or on the date such Registered Holder becomes a Lender as provided in
Section 12.06(b) hereof) and on the date of any change in the Applicable
Lending Office of such Lender, entitled to submit a Form W-8, together
with an annual certificate stating that such Registered Holder (or
beneficial owner, as the case may be) (w) is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (x) is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
the Borrower, (y) is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 871(h)(4)(B) of the Code) and (z)
is not acting as a conduit entity (within the meaning of U.S. Treasury
Regulation Section 1.881-3), or
(iii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with
applicable certification, information, documentation or other reporting
requirements (including, without limitation, the failure to timely submit
a Form 1001, 4224 or W-8 (together with the annual certificate required
under clause (ii) above), as applicable) concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person (or beneficial owner, as the case may be) if
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such compliance is required by statute or regulation of the United States
of America as a precondition to relief or exemption from such U.S. Taxes.
For the purposes of this Section 5.07(a), (A) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (B) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America and (C) "Form W-8" shall mean Form W-8
(Certificate of Foreign Status) of the Department of Treasury of the United
States of America. Each of the Forms referred to in the foregoing clauses (A),
(B) and (C) shall include such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United States of
America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Borrower
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
5.08 Replacement Lenders. At any time within 30 days after the
payment by the Borrower to any Lender of any amount pursuant to Section 5.01 or
5.07 hereof that the Borrower deems material, the Borrower may, by notice to the
Administrative Agent and each Lender that requested the payment of such amount,
nominate or propose a bank or other financial institution that is willing to
become the assignee of the Loans and (if any) Commitments of such Lender (a
"Replacement Lender") pursuant to Section 12.06(b) hereof, and within 15
Business Days after receipt of such proposal from the Borrower, such Lender
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance substantially in the form of Exhibit G hereto whereby such Lender
shall assign its entire Loans and (if any) Commitments to the proposed
Replacement Lender in accordance with Section 12.06(b) hereof unless, prior to
the expiration of such period, the Administrative Agent shall have notified the
Borrower and such Lender that the proposed Replacement Lender is not reasonably
acceptable to the Administrative Agent; provided that in no event will (i) any
Lender be required to enter into such Assignment and Acceptance under this
Section 5.08 at a price less than par plus accrued interest and prorated fees
and other costs
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due hereunder (including, without limitation, break funding costs incurred by
such Lender as a result of such assignment being effected on a day other than
the last day of an Interest Period, which amount (if any) shall be payable by
the Borrower to such Lender) to the effective date thereof, (ii) the
Administrative Agent or any Lender be obligated to assist the Borrower in
identifying any Person that is willing to become such a Replacement Lender and
(iii) any such assignment be required if the consummation thereof conflicts with
any law, regulation or rule.
Section 6. Guarantee.
6.01 The Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to, and the Notes held by each Lender
of, the Borrower and all other amounts from time to time owing to the Lenders or
the Administrative Agent by the Borrower under this Agreement and under the
Notes and by any Obligor under any of the other Loan Documents (including,
without limitation, all Reimbursement Obligations), and all obligations of the
Borrower or any of its Subsidiaries to any Lender or any affiliate of a Lender
in respect of any Interest Rate Protection Agreement, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Subsidiary Guarantors hereby further
jointly and severally agree that if the Borrower shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Subsidiary Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional. The obligations of the Subsidiary
Guarantors under Section 6.01 hereof are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under this Agreement, the
Notes or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a
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legal or equitable discharge or defense of a surety or guarantor, it being the
intent of this Section 6.02 that the obligations of the Subsidiary Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of the Subsidiary Guarantors hereunder, which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such performance
or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or the Notes or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Subsidiary Guarantors
under this Section 6 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations
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is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Subsidiary Guarantors jointly and severally
agree that they will indemnify the Administrative Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Administrative Agent or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04 Subrogation. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 6.01
hereof, whether by subrogation or otherwise, against the Borrower or any other
Subsidiary Guarantor of any of the Guaranteed Obligations or any security for
any of the Guaranteed Obligations.
6.05 Remedies. The Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Lenders, the obligations of
the Borrower under this Agreement and the Notes may be declared to be forthwith
due and payable as provided in Section 10 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 10) for purposes of Section 6.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrower and that,
in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Borrower) shall forthwith become due and payable by the
Subsidiary Guarantors for purposes of said Section 6.01.
6.06 Instrument for the Payment of Money. Each Subsidiary Guarantor
hereby acknowledges that the guarantee in this Section 6 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
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6.07 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08 Rights of Contribution. The Subsidiary Guarantors hereby agree,
as between themselves, that if any Subsidiary Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Subsidiary
Guarantor of any Guaranteed Obligations, each other Subsidiary Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence),
pay to such Excess Funding Guarantor an amount equal to such Subsidiary
Guarantor's Pro Rata Share (as defined below and determined, for this purpose,
without reference to the Properties, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Guarantor under this Section 6.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Section 6 and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding Guarantor"
shall mean, in respect of any Guaranteed Obligations, a Subsidiary Guarantor
that has paid an amount in excess of its Pro Rata Share of such Guaranteed
Obligations, (ii) "Excess Payment" shall mean, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro
Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share" shall mean,
for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x) the
amount by which the aggregate present fair saleable value of all Properties of
such Subsidiary Guarantor (excluding any shares of stock of any other Subsidiary
Guarantor) exceeds the amount of all the debts and liabilities of such
Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all Properties of all of the Borrower and
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Borrower and the Subsidiary Guarantors
hereunder and under the other Loan Documents) of the Borrower and the Subsidiary
Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a
party hereto on the
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Effective Date, as of the Effective Date, and (B) with respect to any other
Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a
Subsidiary Guarantor hereunder.
6.09 General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 hereof would otherwise, taking into account the provisions of
Section 6.08 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 6.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, any Lender, the Administrative
Agent or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
Section 7. Conditions Precedent.
7.01 Effectiveness. The effectiveness of this Agreement is subject
to the conditions precedent that the Administrative Agent shall have received
the following documents (with sufficient copies for each Lender), each of which
shall be reasonably satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance:
(a) Partnership and Corporate Documents. Certified copies of the
Partnership Agreement and the charter and by-laws (or equivalent
documents) of each Obligor (other than the Borrower) and of all
partnership and corporate authority for each Obligor (including, without
limitation, board of directors resolutions and evidence of the incumbency,
including specimen signatures, of officers) with respect to the execution,
delivery and performance of such of the Loan Documents to which such
Obligor is intended to be a party and each other document to be delivered
by such Obligor from time to time in connection herewith and the
extensions of credit hereunder (and the Administrative Agent and each
Lender may conclusively rely on such certificate until it receives notice
in writing from such Obligor to the contrary).
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(b) Senior Officer's Certificate. A certificate of a Senior Officer,
dated the Effective Date, to the effect set forth in the first sentence of
Section 7.02 hereof.
(c) Notes. The Notes, duly completed and executed for each Lender
(except that, in the case of a Registered Holder, Notes shall be required
only to the extent that such Registered Holder shall have requested the
execution and delivery of a Note pursuant to Section 2.08(f) hereof).
Promptly upon receipt of the Notes, the Lenders shall return the
promissory notes (if any) issued to and held by them under the Existing
Credit Agreement.
(d) Modification to Mortgage. (i) A Second Modification of Leasehold
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
with respect to the Mortgage of the Woodland Hills Lease, duly executed
and delivered by the Borrower and the Administrative Agent in recordable
form (in such number of copies as the Administrative Agent shall have
requested), and (ii) an endorsement or supplement from the title company
that issued the title insurance policy in respect of the leasehold deed of
trust with respect to the Woodland Hills Lease endorsing or supplementing
such policy so as to insure such deed of trust as modified by the
modifications thereto (including, without limitation, such Second
Modification) and showing no title exception other than the exceptions
shown on such policy or otherwise satisfactory to the Administrative
Agent.
(e) Security Agreement. Amendment No. 1 to the Security Agreement,
substantially in the form of Exhibit B hereto, duly executed by the
Borrower and the Administrative Agent. In addition, the Borrower shall
have taken such other action (including, without limitation, delivering to
the Administrative Agent, for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to perfect the security
interests created pursuant to the Security Agreement (to the extent such
filings have not already been effected pursuant to the Existing Credit
Agreement). Further, as reasonably requested by the Administrative Agent,
the Borrower shall have duly executed and delivered an amendment to the
U.K. Pledge Agreement to reflect the transactions contemplated by this
Agreement.
(f) Opinion of Special New York Counsel to the Obligors. An opinion,
dated the Effective Date, of Willkie
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Farr & Gallagher, special New York counsel to the Obligors, substantially
in the form of Exhibit C hereto, covering such other matters as the
Administrative Agent or any Lender may reasonably request (and the
Borrower hereby instructs such counsel to deliver such opinion to the
Lenders and the Agent).
(g) Opinion of Special New York Counsel to Chase. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy, special New York
counsel to Chase, substantially in the form of Exhibit D hereto (and Chase
hereby instructs such counsel to deliver such opinion letter to the
Lenders).
(h) Repayment of Existing Indebtedness. Evidence that (i) the
principal of and interest on, and all other amounts owing in respect of,
the Existing Facility B Term Loans and any Existing Facility A Term Loans
not continued hereunder, (ii) accrued interest on and any amounts payable
under Section 5.05 of the Existing Credit Agreement in respect of the
Existing Revolving Credit Loans and the Existing Facility A Term Loans
continued hereunder and (iii) accrued commitment fee payable under Section
2.05 of the Existing Credit Agreement shall have been paid in full.
(i) Certain Financial Matters. A certificate of a Senior Officer,
dated the Effective Date, (i) to the effect that the aggregate net
proceeds of such Initial Public Equity Offering equal or exceed
$50,000,000 and (ii) setting forth the Total Debt Ratio as at the
Effective Date (calculated as of the Effective Date on a pro forma basis
after giving effect to the Initial Public Equity Offering and the
application of the proceeds thereof to repay Existing Facility A Term
Loans and Existing Facility B Term Loans and the aggregate amount of Loans
to be made or continued on the Effective Date).
(j) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to Chase may reasonably
request.
The obligation of any Lender to continue any Existing Facility A Term Loan or
any Existing Revolving Credit Loan or to make any other extension of credit
hereunder on the Effective Date is also subject to the payment by the Borrower
of such fees as the Borrower shall have agreed to pay to any Lender or the
Administrative Agent in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to Chase, in connection with the negotiation, preparation,
execution and delivery of this
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Agreement, the Notes and the other Loan Documents and the extensions of credit
hereunder (to the extent that statements for such fees and expenses have been
delivered to the Borrowers).
7.02 Initial and Subsequent Extensions of Credit. The obligation of
the Lenders to make any Loan or otherwise extend credit to the Borrower upon the
occasion of each borrowing or other extension of credit hereunder (including the
continuance of any Existing Facility A Term Loan or Existing Revolving Credit
Loan on the Effective Date and any other extension of credit on the Effective
Date) is subject to the further conditions precedent that, both immediately
prior to the making of such Loan or other extension of credit and also after
giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrower in
Section 8 hereof, and by each Obligor in each of the other Loan Documents
to which it is a party, shall be true and complete on and as of the date
of the making of such Loan or other extension of credit with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date (it being understood that references to "the date hereof"
are references to a specific date), as of such specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Borrower hereunder shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent and the Lenders that:
8.01 Existence. Each of the Borrower and its Subsidiaries: (a) is a
corporation, partnership or other entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now
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being or as proposed to be conducted; and (c) is qualified to do business and is
in good standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify could reasonably be expected (either individually or in the aggregate)
to have a Material Adverse Effect.
8.02 Financial Condition. The Borrower has heretofore furnished to
each of the Lenders the following financial statements:
(i) consolidated balance sheets of the Borrower and its Subsidiaries
as at December 31, 1995 and the related consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for
the fiscal year ended on said date, with the opinion thereon of Ernst &
Young LLP, and
(ii) the unaudited consolidated balance sheets of the Borrower and
its Subsidiaries as at September 30, 1996 and the related consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the nine-month period ended on such date.
All such financial statements are complete and correct in all material respects
and fairly present the consolidated financial condition of the Borrower and its
Subsidiaries and the consolidated results of their operations for the fiscal
year and nine-month period ended on said dates (subject, in the case of such
financial statements as at September 30, 1996 to normal year-end audit
adjustments), all in accordance with generally accepted accounting principles
and practices applied on a consistent basis. None of the Borrower and its
Subsidiaries has on the Effective Date any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said balance sheets as at said dates. Since
December 31, 1995, there has been no material adverse change in the consolidated
financial condition, operations, business, assets, liabilities or prospects
taken as a whole of the Borrower and its Subsidiaries from that set forth in
said financial statements as at said date.
8.03 Litigation. Except as set forth in Schedule V hereto, there are
no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Borrower) threatened against the Borrower or any of its Subsidiaries or
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that could reasonably be expected (either individually or in the aggregate) to
have a Material Adverse Effect, or that seek to enjoin or otherwise challenge
any of the transactions (including the Initial Public Equity Offering)
contemplated by this Agreement.
8.04 No Breach. None of the execution and delivery of this Agreement
and the Notes and the other Loan Documents, the consummation of the transactions
herein and therein contemplated or compliance with the terms and provisions
hereof and thereof will conflict with or result in a breach of, or require any
consent under, the Partnership Agreement, charter or by-laws of any Obligor, or
any applicable law or regulation, or any order, writ, injunction or decree of
any court or governmental authority or agency, or any material agreement or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Borrower or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Action. Each Obligor has all necessary partnership or corporate
power, authority and legal right to execute, deliver and perform its obligations
under each of the Loan Documents to which it is a party; the execution, delivery
and performance by each Obligor of each of the Loan Documents to which it is a
party have been duly authorized by all necessary partnership or corporate action
on its part (including, without limitation, any required partner or shareholder
approvals); and this Agreement has been duly and validly executed and delivered
by each Obligor and constitutes, and each of the Notes and the other Loan
Documents to which it is a party when executed and delivered by such Obligor (in
the case of the Notes, for value) will constitute, its legal, valid and binding
obligation, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of this Agreement or any of the other
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Loan Documents to which it is a party or for the legality, validity or
enforceability hereof or thereof, except for filings, recordings and
registrations in respect of the Liens created pursuant to the Security
Documents.
8.07 Use of Credit. Neither the Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock.
8.08 ERISA. Each Plan, and, to the knowledge of the Borrower, each
Multiemployer Plan, is in compliance with, and has been administered in
compliance with, the applicable provisions of ERISA, the Code and any other
Federal or State law except where failure to so comply could not reasonably be
expected to have a Material Adverse Effect, and no event or condition has
occurred and is continuing as to which the Borrower would be under an obligation
to furnish a report to the Lenders under Section 9.01(f) hereof which could
reasonably be likely to lead to liabilities in excess of $500,000.
8.09 Taxes. Except as set forth in Schedule VI hereto, the Borrower
and its Subsidiaries have filed all Federal income tax returns and all other
material tax returns that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by the
Borrower or any of its Subsidiaries. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Borrower, adequate.
8.10 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, agreement for purchase of
Property or services, guarantee, letter
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of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Borrower or any of its Subsidiaries outstanding
on the Effective Date as to which (in the case of any such arrangement) the
aggregate principal or face amount equals or exceeds (or may equal or exceed)
$500,000, and the aggregate principal or face amount outstanding or that may
become outstanding under each such arrangement is correctly described in Part A
of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the Effective Date
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $500,000 and covering any Property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the Property covered by each such Lien is correctly described
in Part B of said Schedule I.
8.13 Environmental Matters. Each of the Borrower and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or authorization could not reasonably
be expected (either individually or in the aggregate) to have a Material Adverse
Effect. Each of such permits, licenses and authorizations is in full force and
effect and each of the Borrower and its Subsidiaries is in compliance with the
terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply therewith could not reasonably be
expected (either individually or in the aggregate) to have a Material Adverse
Effect. Except as set forth on Schedule VII hereto, no notice, notification,
demand, request for information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no investigation or
review is pending or (to the knowledge of the Borrower) threatened by any
governmental or other entity with respect to any alleged failure by the Borrower
or any of its Subsidiaries to have any environmental, health or safety permit,
license or other authorization required under any Environmental Law in
connection with the conduct of the business of the Borrower or any of its
Subsidiaries or with respect to any generation, treatment, storage, recycling,
transportation,
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discharge or disposal, or any Release of any Hazardous Materials generated by
the Borrower or any of its Subsidiaries, in each case which could reasonably be
expected to lead to fines, penalties or liabilities in excess of $500,000. All
environmental investigations, studies, audits, tests, reviews or other analyses
conducted by or that are in the possession of the Borrower or any of its
Subsidiaries in relation to facts, circumstances or conditions at or affecting
any site or facility now or previously owned, operated or leased by the Borrower
or any of its Subsidiaries and that could reasonably be expected to have a
Material Adverse Effect have been made available to the Administrative Agent.
8.14 Capitalization.
(a) The Borrower has heretofore delivered to the Lenders a true and
complete copy of its Partnership Agreement. The General Partners and each of the
limited partners of the Borrower and their respective general and limited
partnership interests of the Borrower, on the Effective Date (after giving
effect to the transactions contemplated to occur on such date), are specified on
Part A of Schedule IV hereto.
(b) As of the Effective Date, (i) there are no outstanding Equity
Rights with respect to the Borrower except as set forth on Part B of Schedule IV
hereto and (ii) there are no outstanding obligations of the Borrower or any of
its Subsidiaries to repurchase, redeem, or otherwise acquire any partnership
interest, shares of capital stock or other ownership interests of the Borrower
nor are there any outstanding obligations of the Borrower or any of its
Subsidiaries to make payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market value
or equity value of the Borrower or any of its Subsidiaries.
8.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule II hereto is a complete and
correct list of all of the Subsidiaries of the Borrower as of the date of the
Effective Date, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule II hereto,
(x) each of the Borrower and its Subsidiaries owns, free and clear of Liens
(other than Liens created pursuant to the Security Documents),
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and has the unencumbered right to vote, all outstanding ownership interests in
each Person shown to be held by it in Part A of Schedule II hereto, (y) all of
the issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule II hereto is a complete and
correct list of all Investments (other than Investments disclosed in Part A of
said Schedule II hereto and other than Investments of the type referred to in
clauses (b), (c), (d) or (e) of Section 9.08 hereof) held by the Borrower or any
of its Subsidiaries in any Person on the Effective Date and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Part B of Schedule
II hereto, each of the Borrower and its Subsidiaries owns, free and clear of all
Liens (other than Liens created pursuant to the Security Documents), all such
Investments.
(c) None of the Subsidiaries of the Borrower is, on the Effective
Date, subject to any indenture, agreement, instrument or other arrangement of
the type described in Section 9.15(c) hereof.
8.16 Title to Assets. The Borrower owns and has on the Effective
Date good and marketable title (subject only to Liens permitted by Section 9.06
hereof) to the material Properties shown to be owned in the most recent
financial statements referred to in Section 8.02 hereof (other than Properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05 hereof). The Borrower owns and has on the
Effective Date good and marketable title to, and enjoys on the Effective Date
peaceful and undisturbed possession of, all material Properties (subject only to
Liens permitted by Section 9.06 hereof) that are necessary for the operation and
conduct of its businesses.
8.17 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules (including, without limitation, the
Information Memorandum) furnished in writing by or on behalf of the Obligors to
the Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Loan Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole do not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading.
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All written information furnished after the Effective Date by the Borrower and
its Subsidiaries to the Administrative Agent and the Lenders in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby (including, without limitation, any information memorandum
prepared in connection with the primary syndication of this Agreement to the
Lenders other than Chase) will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known
to the Borrower that could have a Material Adverse Effect that has not been
disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.18 Real Property. Set forth on Schedule III attached hereto is a
list, as of the Effective Date, of all of the real property interests held by
the Borrower and its Subsidiaries, indicating in each case whether the
respective Property is owned or leased, the identity of the owner or lessee and
the location of the respective Property.
Section 9. Covenants of the Borrower. The Borrower covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Borrower hereunder:
9.01 Financial Statements Etc. The Borrower shall deliver to the
Administrative Agent, together with copies for each of the Lenders (which copies
the Administrative Agent shall promptly forward to the Lenders):
(a) as soon as available and in any event within 45 days after the
end of each calendar monthly period (other than the month of December),
consolidated statements of income, partners' capital (or, at any time
following the conversion of the Borrower from a partnership to a
corporation, retained earnings) and cash flows of the Borrower and its
Subsidiaries for such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the related
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in the
preceding fiscal year;
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(b) as soon as available and in any event within 45 days after the
end of each of the first three quarterly fiscal periods of each fiscal
year of the Borrower, consolidated statements of income, partners' capital
(or, at any time following the conversion of the Borrower from a
partnership to a corporation, retained earnings) and cash flows of the
Borrower and its Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheets of the Borrower and its Subsidiaries
as at the end of such period, setting forth in each case in comparative
form the corresponding consolidated figures for the corresponding periods
in the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a Senior Officer, which certificate shall
state (i) that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of the Borrower
and its Subsidiaries in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments) and (ii) the amount of any
Restricted Payment paid during such period as permitted pursuant to
Section 9.09 hereof;
(c) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, consolidated statements of
income, partners' capital (or, at any time following the conversion of the
Borrower from a partnership to a corporation, retained earnings) and cash
flows of the Borrower and its Subsidiaries for such fiscal year and the
related consolidated balance sheets of the Borrower and its Subsidiaries
as at the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated figures for the preceding
fiscal year, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly
present the consolidated financial condition and results of operations of
the Borrower and its Subsidiaries as at the end of, and for, such fiscal
year in accordance with generally accepted accounting principles, and a
statement of such accountants to the effect that, in making the
examination necessary for their opinion, nothing came to their attention
that caused them to believe that the Borrower was not in compliance with
Section 9.10 hereof, insofar as such Section relates to accounting
matters;
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(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Borrower shall have filed with the Securities and Exchange Commission (or
any governmental agency substituted therefor) or any national securities
exchange;
(e) promptly upon the mailing thereof to the Partners of the
Borrower generally or to holders of Subordinated Indebtedness generally,
copies of all financial statements, reports and proxy statements so
mailed, and promptly following the receipt thereof by the Borrower, copies
of any notices or demands made by any holder (or a trustee for any holder)
of any Subordinated Indebtedness to or upon the Borrower;
(f) as soon as possible, and in any event within 20 Business Days
after the Borrower knows that any of the events or conditions specified
below with respect to any Plan or Multiemployer Plan has occurred or
exists, a statement signed by a Senior Officer setting forth details
respecting such event or condition and the action, if any, that the
Borrower or its ERISA Affiliate proposes to take with respect thereto (and
a copy of any report or notice required to be filed with or given to the
PBGC by the Borrower or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which the PBGC has not by regulation waived the notice
requirement of Section 4043(a) of ERISA (provided that a failure to
meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, including, without limitation, the failure to
make on or before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA, shall be a reportable
event regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); and any request for a waiver under
Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Borrower
or an ERISA Affiliate to terminate any Plan, in each case other than
in a standard termination;
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(iii) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by the Borrower or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt by the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if the Borrower or an ERISA Affiliate fails to timely
provide security to the Plan in accordance with the provisions of
said Sections;
(g) promptly after the Borrower knows or has reason to believe that
any Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Borrower has taken or
proposes to take with respect thereto;
(h) promptly upon becoming available for each fiscal year (but not
later than 15 days after the beginning of each fiscal year), an annual
budget of the Borrower and its Subsidiaries for such fiscal year,
containing (i) a forecast balance sheet, and statements of income and cash
flows, (ii) an explanation of assumptions used to arrive at such forecasts
and (iii) an estimate of the calculation of compliance with the covenants
set forth in Section 9.10 for the relevant forecast period;
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(i) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrower or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer
Plan and any reports or other information required to be filed under
ERISA) or Affiliates as any Lender or the Administrative Agent may
reasonably request.
The Borrower will furnish to the Administrative Agent, together with copies for
each of the Lenders (which copies the Administrative Agent shall promptly
forward to the Lenders), at the time it furnishes each set of financial
statements pursuant to Section 9.01(b) or 9.01(c) hereof, a certificate of a
Senior Officer (i) to the effect that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing, describing the same in
reasonable detail and describing the action that the Borrower has taken or
proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrower is in
compliance with Sections 9.07(e), 9.08(f), 9.09(a), 9.09(b), 9.09(c) and 9.10
hereof as of the end of the respective monthly accounting period, quarterly
fiscal period or fiscal year.
9.02 Litigation.
(a) The Borrower will promptly give to the Administrative Agent,
together with copies for each of the Lenders (which copies the Administrative
Agent shall promptly forward to the Lenders), notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Borrower or any of its Subsidiaries, but only
if such proceedings, if adversely determined, could reasonably be expected
(either individually or in the aggregate) to have a Material Adverse Effect.
(b) Without limiting the generality of the obligations under Section
9.02(a) hereof, the Borrower will give to the Administrative Agent, together
with copies for each Lender (which copies the Administrative Agent shall
promptly forward to the Lenders), notice of the assertion of any environmental
matter by any Person against, or with respect to the activities of, the Borrower
or any of its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations, but only if such environmental matter or alleged violation, if
adversely determined, could reasonably be expected (either individually or in
the aggregate) to have a Material Adverse Effect. In
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addition, the Borrower shall promptly furnish to the Administrative Agent true
and complete copies of each environmental audit, assessment or study with
respect to the premises subject to the Woodland Hills Lease delivered pursuant
to Section 15.3 of such Lease, and the Borrower shall cause the lessor to
implement the recommendations (if any) set forth in such report and shall cause
the lessor to remediate any identified instances of non-compliance with
Environmental Laws which could reasonably be expected to lead to material fines,
penalties or liabilities. The Borrower agrees to pursue diligently any claims or
remedies under Section 15.4 of the Woodland Hills Lease and the Agreement of
Guaranty dated June 13, 1995 from Trizec Properties, Inc. in favor of the
Borrower, in each case with respect to the matters covered thereby.
9.03 Existence, Etc. The Borrower will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly
permitted under Section 9.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could reasonably be expected
(either individually or in the aggregate) to have a Material Adverse
Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of
its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
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(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours and upon reasonable notice to the
Borrower, to examine, copy and make extracts from its books and records,
to inspect any of its Properties, and to discuss its business and affairs
with its officers, all to the extent reasonably requested by such Lender
or the Administrative Agent (as the case may be).
9.04 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations, provided that in any event
the Borrower will maintain property damage insurance with respect to the
tangible personal and real property subject to the Liens of the Security
Documents in such amounts, and subject to such deductibles, as shall be
reasonably satisfactory to the Administrative Agent, and shall name the
Administrative Agent as loss payee under each policy of such insurance.
9.05 Prohibition of Fundamental Changes.
(a) Mergers and Consolidations. The Borrower will not, nor will it
permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
(b) Acquisitions. The Borrower will not, nor will it permit any of
its Subsidiaries to, acquire any business or Property from, or capital stock of,
or be a party to any Acquisition of, any Person except for:
(i) purchases of inventory and other Property to be sold or used in
the ordinary course of business;
(ii) Investments permitted under Section 9.08 hereof;
(iii) Capital Expenditures; and
(iv) the Borrower and its Wholly Owned Subsidiaries may effect any
Acquisition, so long as:
(A) the aggregate Purchase Price of all Acquisitions shall not
exceed $40,000,000 and the aggregate Purchase Price of any
individual Acquisition
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shall not exceed $15,000,000, provided that the aggregate Purchase
Price of all Acquisitions of Persons which, after giving effect to
such Acquisition, are less than 80% owned by the Borrower and/or any
of its Wholly Owned Subsidiaries shall not exceed $20,000,000;
(B) each Acquired Entity shall engage in a line of business
(1) related to the manufacturing, sale, distribution or rental of
media and/or film equipment (or any line of business substantially
similar to the line(s) of business conducted by the Borrower and its
Subsidiaries on the Effective Date) or (2) otherwise acceptable to
the Majority Lenders;
(C) such Acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the relevant
Acquired Entity (and the related assets) is owned by the Borrower
and/or any of its Subsidiaries and, if effected by merger or
consolidation involving the Borrower, the Borrower shall be the
continuing or surviving entity;
(D) such Acquisition (if by purchase of stock or other
ownership interests) shall be effected in such manner so that the
Acquired Entity becomes either a direct Subsidiary of the Borrower
or a direct Subsidiary of a direct Wholly Owned Subsidiary of the
Borrower;
(E) the Borrower shall deliver to the Administrative Agent, no
later than five Business Days prior to the consummation of such
Acquisition, a reasonably detailed description of the material terms
of such Acquisition (including, without limitation, the business,
assets or Person, the Purchase Price thereof, the method and
structure of payment thereof and (if such Acquisition involves the
purchase of real Property) the estimated fair market value of such
Property);
(F) to the extent applicable, the Borrower shall have complied
(or made arrangements satisfactory to the Administrative Agent to
comply) with the provisions of Sections 9.15 and 9.17 hereof,
including, without limitation, (1) delivery to the Administrative
Agent of the certificates evidencing the capital stock or other
ownership interests of any new Subsidiary Acquired pursuant to such
Acquisition, accompanied by undated stock or other powers executed
in blank and
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(2) delivery to the Administrative Agent of the agreements,
instruments, opinions of counsel and other documents required under
Section 9.17 hereof;
(G) the sum, for the Acquired Entity and its Subsidiaries, if
any (determined on a consolidated basis without duplication in
accordance with GAAP), of (a) net income for the period of four
consecutive fiscal quarters ending on or most recently prior to the
date of such Acquisition (calculated after eliminating extraordinary
gains and losses and unusual items) plus (b) income and other taxes
(to the extent deducted in determining net income for such period)
plus (c) depreciation and amortization and other non-cash charges
(to the extent deducted in determining net income for such period)
plus (d) the aggregate amount of Interest Expense for such period
minus (e) the aggregate amount of interest income for such period
plus (f) the aggregate amount of upfront or one-time fees or
expenses payable in respect of Interest Rate Protection Agreements
during such period (to the extent deducted in determining net income
for such period) plus (g) the amount of unrealized foreign exchange
losses (net of any gains) (or minus the amount of unrealized foreign
exchange gains (net of any losses)) plus (h) expenses, including
excess compensation or parachute payments, in connection with such
Acquisition (to the extent deducted in determining net income for
such period) minus (i) expenditures (including, without limitation,
the aggregate amount of assets capitalized under Capital Lease
Obligations incurred during such period computed in accordance with
GAAP) made by the Acquired Entity or any of its Subsidiaries to
acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP shall exceed
zero;
(H) immediately prior to such Acquisition and after giving
effect thereto, no Default shall have occurred or be continuing;
(I) after giving effect to such Acquisition the Borrower shall
be in compliance with Section 9.10 hereof (the determination of such
compliance to be calculated on a pro forma basis, as at the end of
and for the period of four fiscal quarters most recently ended prior
to the date of such Acquisition for which financial statements of
the Borrower and its
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Subsidiaries are available, under the assumption that such
Acquisition shall have been made or consummated, and any
Indebtedness in connection therewith shall have been incurred, at
the beginning of the applicable period, and under the assumption
that interest for such period had been equal to the actual weighted
average interest rate in effect for the Loans hereunder on the date
of such Acquisition); and
(J) on or prior to the date of the consummation of such
Acquisition, the Borrower shall have delivered to the Administrative
Agent a certificate of a Senior Officer showing the calculations in
reasonable detail to demonstrate compliance with the requirements of
clauses (G) and (I) above and certifying as to clause (H) above.
In addition, but not as a condition precedent to any Acquisition, the
Borrower shall deliver to the Administrative Agent (x) promptly following
the consummation of each Acquisition, a copy of the relevant fully
executed acquisition agreement (including schedules and exhibits thereto)
and (y) with respect to any Acquisition which involves the purchase or
other acquisition of real Property (or a lease therefor) having a fair
market value of more than $3,000,000, if the Majority Lenders shall have
determined, in their reasonable judgment, that grounds exist for believing
that a potential liability affecting such Property of a material amount
may exist under any Environmental Law, within 30 days following the
request of the Majority Lenders (which request may not be given more than
15 days following the consummation of such Acquisition), an environmental
risk assessment in respect of such Property from a firm, and in scope and
content, reasonably satisfactory to the Majority Lenders.
(c) Dispositions. The Borrower will not, nor will it permit any of
its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in
one transaction or a series of transactions, any part of its business or
Property, whether now owned or hereafter acquired (including, without
limitation, receivables and leasehold interests, but excluding:
(i) Excluded Dispositions;
(ii) any disposition of Property in connection with the termination
or nonrenewal of the lease existing on the Original Closing Date in
respect of the premises located in Tarzana, California (or any other
lease, provided that the
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aggregate amount of Property disposed of under all such other leases shall
not exceed $250,000); and
(iii) additional Dispositions having a market value not exceeding
$3,000,000 during any fiscal year (in the case of the fiscal year ending
December 31, 1996, from and after the Original Closing Date) or $6,000,000
in the aggregate for all such Dispositions.
(d) Certain Exclusions. Notwithstanding the foregoing provisions of
this Section 9.05:
(i) any Wholly Owned Subsidiary of the Borrower may be merged or
consolidated with or into: (x) the Borrower if the Borrower shall be the
continuing or surviving corporation or (y) any other Wholly Owned
Subsidiary of the Borrower;
(ii) any Wholly Owned Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its Property (upon
voluntary liquidation or otherwise) to the Borrower or another Wholly
Owned Subsidiary of the Borrower; and
(iii) the Borrower may cause Panavision Italia S.rl. to be
liquidated.
9.06 Limitation on Liens. The Borrower will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the Effective Date and listed in Part B of
Schedule I hereto (excluding, however, following the making of any Loans
to be made hereunder on the Effective Date, Liens securing Indebtedness to
be repaid with the proceeds of such Loans, as indicated on said Schedule
I);
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
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(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days (but excluding any
thereto in relation to the work required to be undertaken by the Borrower
and/or the landlord with respect to the premises subject to the Woodland
Hills Lease as contemplated by the definitions of "Tenant's Work" and
"Landlord's Work" as set forth in Exhibit B thereto) or that are being
contested in good faith and by appropriate proceedings and Liens securing
judgments but only to the extent for an amount and for a period not
resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on
the use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or any
of its Subsidiaries; and
(h) Liens upon real and/or tangible personal Property acquired after
the Effective Date (by purchase, construction or otherwise) by the
Borrower or any of its Subsidiaries, each of which Liens secures
Indebtedness under Section 9.07(e) hereof and which Liens either (A)
existed on such Property before the time of its acquisition and was not
created in anticipation thereof or (B) was created solely for the purpose
of securing Indebtedness representing, or incurred to finance, refinance
or refund, the cost (including the cost of construction) of such Property;
provided that no such Lien shall extend to or cover any Property of the
Borrower or such Subsidiary other than the Property so acquired and
improvements thereon.
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9.07 Indebtedness. The Borrower will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the Effective Date and listed in
Part A of Schedule I hereto;
(c) Subordinated Indebtedness incurred after the Effective Date in
accordance with Section 9.11(a) hereof;
(d) Indebtedness of Subsidiaries of the Borrower to the Borrower or
to other Subsidiaries of the Borrower, and Indebtedness of the Borrower to
any Subsidiary of the Borrower; and
(e) additional Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, Capital Lease Obligations and other
Indebtedness secured by Liens permitted under Sections 9.06(h) hereof) up
to but not exceeding $6,000,000 at any one time outstanding.
9.08 Investments. The Borrower will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the Effective Date, as identified in
Part B of Schedule II hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Subsidiaries in the Borrower
and its Subsidiaries;
(e) Interest Rate Protection Agreement not entered into for
speculative purposes;
(f) advances, loans or extensions of credit arising in connection
with the sale of inventory or supplies, or the provision of services, by
the Borrower or any of its Subsidiaries in the ordinary course of business
having a term not exceeding 180 days for the Borrower or any of its
Subsidiaries (other than Foreign Subsidiaries) or 360 days for any Foreign
Subsidiary;
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(g) loans to directors, officers, employees or agents up to but not
exceeding $1,000,000 in the aggregate at any one time outstanding;
(h) Investments made as a result of the receipt of non-cash
consideration from a Disposition permitted under Section 9.05(c) hereof,
up to but not exceeding $1,000,000 (with respect to the fair market value
of such non-cash consideration) in the aggregate at any one time
outstanding;
(i) Investments in dealers and customers received in connection with
any bankruptcy or reorganization of such Person as a result of an
Investment otherwise permitted hereunder;
(j) Investments comprised of progress payments to suppliers up to
but not exceeding $1,000,000 in the aggregate at any one time outstanding;
(k) additional Investments (other than any Investments permitted
under any of the foregoing clauses, but excluding any Investments
permitted under clause (l) below) of up to but not exceeding $4,000,000 in
the aggregate during any fiscal year, provided that in no event shall the
aggregate amount of all such Investments exceed $6,000,000; and
(l) Acquisitions permitted under Section 9.05(b)(iv) hereof.
9.09 Restricted Payments. The Borrower will not, nor will it permit
any of its Subsidiaries to, declare or make any Restricted Payment at any time;
provided that, so long as at the time thereof and after giving effect thereto no
Default shall have occurred and be continuing, the Borrower may:
(a) if, as of the last day of any fiscal year of the Borrower ending
on or after December 31, 1996 (the "preceding fiscal year"), the Total
Debt Ratio is less than 2.50 to 1, make Restricted Payments during the
succeeding fiscal year in an aggregate amount not exceeding the net income
of the Borrower and its Subsidiaries for such preceding fiscal year plus
an amount equal to any amount which could previously have been paid under
this clause (a) but which was not theretofore paid, provided that the
Borrower shall have delivered to the Administrative Agent, at least 10
Business Days (but not more than 20 Business Days) prior to the date of
declaration of any such Restricted Payment, a certificate of a Senior
Officer setting forth computations in reasonable detail
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demonstrating compliance with the requirements of this clause (a);
(b) at any time make Restricted Payments to its partners from that
portion of the Net Available Proceeds of any Public Equity Offering not
required to be applied as a mandatory prepayment pursuant to Section
2.10(b) hereof in an aggregate amount not exceeding the aggregate amount
of capital contributions to the Borrower made from and after the Original
Closing Date by the partners of the Borrower, provided that the Borrower
shall have delivered to the Administrative Agent, at least 10 Business
Days (but not more than 20 Business Days) prior to the date of declaration
of the Restricted Payment, a certificate of a Senior Officer setting forth
computations in reasonable detail demonstrating compliance with the
requirement of this clause (b); and
(c) Panavision Canada Holdings Inc. may repurchase its shares held
by management from time to time, up to but not exceeding $3,000,000 in the
aggregate.
Nothing herein shall be deemed to prohibit the payment of dividends
by any Subsidiary of the Borrower to the Borrower or to any other Subsidiary of
the Borrower. In addition, notwithstanding anything contained herein to the
contrary, the Borrower may (so long as the Borrower is organized as a
partnership) make Restricted Payments to its partners or on behalf of its
partners in such amounts and at such times as provided in the Partnership
Agreement in respect of the Tax Payment Amount.
9.10 Certain Financial Covenants.
(a) Total Debt Ratio. The Borrower will not permit the Total Debt
Ratio to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From and including the
Effective Date to and
including December 30, 1997 4.50 to 1
From and including
December 31, 1997
to and including
March 30, 1998 4.25 to 1
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From and including
March 31, 1998
to and including
September 29, 1998 4.00 to 1
From and including
September 30, 1998
to and including
March 30, 1999 3.75 to 1
From and including
March 31, 1999
to and including
September 29, 1999 3.50 to 1
From and including
September 30, 1999
to and including
March 30, 2000 3.25 to 1
From and including
March 31, 2000
and at all times
thereafter 3.00 to 1
(b) Interest Coverage Ratio. The Borrower will cause the Interest
Coverage Ratio to exceed the following respective ratios at the end of each
fiscal quarter during the following respective periods:
Period Ratio
------ -----
From and including the
Effective Date
through and including
March 31, 1997 2.00 to 1
From and including
April 1, 1997
through and including
March 31, 1998 2.25 to 1
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From and including
April 1, 1998
and at all times
thereafter 2.50 to 1
(c) Fixed Charges Ratio. The Borrower will not permit the Fixed
Charges Ratio to be less than 1.05 to 1 at the end of any fiscal quarter.
9.11 Subordinated Indebtedness.
(a) Incurrence. The Borrower may, at any time after the Effective
Date, incur additional Indebtedness so long as each of the following conditions
shall be satisfied:
(i) such additional Indebtedness is subordinated to the obligations
of the Borrower to pay principal of and interest on the Loans, the Notes
and the other obligations hereunder and under the Loan Documents on terms
of subordination, and pursuant to documentation containing other terms
(including, without limitation, interest, amortization, covenants and
events of default), in each case in form and substance reasonably
satisfactory to the Majority Lenders;
(ii) the Net Available Proceeds of such Indebtedness are applied to
the prepayment of the Loans to the extent required by Section 2.10(e)
hereof; and
(iii) after giving effect to the incurrence of such Indebtedness and
the application of proceeds thereof, no Default shall have occurred and be
continuing.
Any Subsidiary Guarantor may Guarantee such Indebtedness so long as such
Guarantee is similarly subordinated to the Guarantee of such Subsidiary
Guarantor hereunder upon terms (including, without limitation, terms of
subordination) in form and substance reasonably satisfactory to the Majority
Lenders.
(b) Payments and Prepayments. The Borrower will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for
regularly scheduled payments or prepayments of principal and interest in respect
thereof required
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pursuant to the instruments evidencing such Subordinated Indebtedness.
9.12 Lines of Business. The Borrower will not, nor will it permit
any of its Subsidiaries to, engage in any line or lines of business activity
other than that related to the manufacturing, sale, distribution or rental of
media and/or film equipment or lines of business substantially similar to that
conducted by the Borrower and its Subsidiaries on the Effective Date.
9.13 Transactions with Affiliates. Except as expressly permitted by
this Agreement, the Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate);
provided that, notwithstanding the foregoing:
(i) any Affiliate who is an individual may serve as a director,
officer or employee of the Borrower or any of its Subsidiaries and receive
indemnification and reasonable compensation for his or her services in
such capacity;
(ii) the Borrower and its Subsidiaries may enter into transactions
(other than extensions of credit by the Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of inventory and
other Property in the ordinary course of business if the monetary or
business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or
business consideration that would obtain in a comparable transaction with
a Person not an Affiliate; and
(iii) the Borrower and its Subsidiaries may make Permitted
Investments in the Warburg Pincus Cash Reserve Fund meeting the
requirements of the definition of "Permitted Investments" in Section 1.01
hereof.
9.14 Use of Proceeds. The Borrower will use the proceeds of the
Revolving Credit Loans made hereunder after the Effective Date to finance the
ongoing working capital and capital expenditure requirements of the Borrower and
its Subsidiaries and
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to provide funds for general corporate purposes of the Borrower and its
Subsidiaries, in each case in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations G, T, U and
X and the Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder; provided that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
9.15 Certain Obligations Respecting Subsidiaries.
(a) Subsidiary Guarantors. The Borrower will take such action, and
will cause each of its Subsidiaries to take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Borrower are
"Subsidiary Guarantors" hereunder. Without limiting the generality of the
foregoing, in the event that the Borrower or any of its Subsidiaries shall form
or acquire any new entity that shall constitute a Subsidiary hereunder, the
Borrower and its Subsidiaries will cause such new Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing
Party" under the Security Agreement, pursuant to a Guarantee Assumption
Agreement;
(ii) cause such Subsidiary to take such action (including, without
limitation, delivering such shares of stock, executing and delivering such
Uniform Commercial Code financing statements and executing and delivering
mortgages or deeds of trust covering the real Property and fixtures owned
or leased by such Subsidiary) as shall be necessary to create and perfect
valid and enforceable first priority Liens on substantially all of the
Property of such new Subsidiary as collateral security for the obligations
of such new Subsidiary hereunder (provided that any such security
interests shall be subject to the provisions of Section 5.04(c) of the
Security Agreement and to any Liens permitted under Section 9.06 hereof
and existing at the time such entity becomes a Subsidiary); and
(iii) deliver such proof of partnership or corporate action,
incumbency of officers, opinions of counsel (subject to usual and
customary exceptions and assumptions) and other documents as is consistent
with those delivered by each Obligor pursuant to Section 7.01 hereof on
the Effective Date or as the Administrative Agent shall have requested;
provided that, if any such Subsidiary is organized as a corporation under the
laws of a jurisdiction other than the
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United States of America or a State thereof (each a "Foreign Subsidiary"), such
Subsidiary shall not be required to become a Subsidiary Guarantor hereunder or a
Securing Party under the Security Agreement, and the Borrower shall forthwith
pledge, or cause to be pledged, to the Administrative Agent (for the benefit of
the Lenders) under the Security Agreement (or, at the request of the Majority
Lenders, under a pledge or other agreement governed by the law of such
Subsidiary's jurisdiction of organization) (x) 66% of the voting capital stock
of such Foreign Subsidiary having ordinary voting power for the election of the
board of directors of such Foreign Subsidiary and (y) 100% of all other stock of
such Foreign Subsidiary.
(b) Ownership of Subsidiaries. The Borrower will, and will cause
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries formed or acquired after the
Effective Date is a Wholly Owned Subsidiary, except that with respect to
Subsidiaries formed or acquired pursuant to Section 9.05(b)(iv) or 9.08(k)
hereof, such Subsidiaries shall not be required to be Wholly Owned Subsidiaries.
In the event that any additional shares of stock shall be issued by any
Subsidiary, the respective Obligor agrees forthwith to deliver to the
Administrative Agent pursuant to the Security Agreement the certificates
evidencing such shares of stock, accompanied by undated stock powers executed in
blank and to take such other action as the Administrative Agent shall request to
perfect the security interest created therein pursuant to the Security
Agreement.
(c) Certain Restrictions. The Borrower will not permit any of its
Subsidiaries to enter into, after the Effective Date, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property; provided that the foregoing shall not prohibit (i) any
customary nonassignment provisions entered into in the ordinary course of
business in leases and other agreements, (ii) any restriction with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all of the capital stock or assets
of such Subsidiary, provided that the consummation of such transaction is
otherwise permitted under this Agreement, (iii) any restriction pursuant to
applicable law or regulations, (iv) any restriction on the sale or other
disposition of Property securing Indebtedness as a result of a Lien on such
Property, and (v) any
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restriction contained in any instrument constituting Indebtedness permitted
under Section 9.07(e) hereof, provided that such restrictions are consistent
with, and not materially more restrictive (as conclusively determined in good
faith by a Senior Officer) than comparable provisions included in this
Agreement.
9.16 Modifications of Certain Documents. The Borrower will not, nor
will it permit any of its Subsidiaries to, consent to any modification,
supplement, or waiver of any of the provisions of (a) Sections 3.1 and 5.2(c) of
the Partnership Agreement or (b) of any other provision of the Partnership
Agreement or (in the case of any such Subsidiary or, following the conversion to
a corporation, the Borrower) any provision of its respective charter or by-laws
(or equivalent documents) or any provision of the Woodland Hills Lease, if in
each case such modification, supplement or waiver could reasonably be expected
to be adverse to the interests of the Lenders under the Loan Documents, in each
case without the prior consent of the Majority Lenders; provided that, the
Borrower shall, in any event, notify the Administrative Agent in writing of any
proposed modification, supplement or waiver of any provision of any of the
foregoing agreements or documents at least ten Business Days prior to proposed
effective date of such modification, supplement or waiver.
9.17 Obligations relating to Collateral Security. The Borrower
agrees that in the event it or any of its Subsidiaries (other than any Foreign
Subsidiary) shall, after the Effective Date, acquire any real Property,
including, without limitation, the entering into of a new lease, in each case
involving Property having a fair market value at the time of such acquisition or
lease of more than $3,000,000, whether of a new or an existing facility, the
Borrower or such Subsidiary, as the case may be, will promptly, upon the request
of the Majority Lenders, (a) execute and deliver to the Administrative Agent an
appropriate Mortgage covering such real Property, provided that, in the case of
any such leasehold interest, the Borrower or such Subsidiary shall use its best
efforts to obtain from the respective landlord a consent for the execution and
delivery by the Borrower or any such Subsidiary, as the case may be, of a
Mortgage covering such leasehold interest and, only upon obtaining such consent,
it will immediately execute and deliver to the Administrative Agent an
appropriate Mortgage covering such leasehold interest) and (b) satisfy all other
requirements with respect thereto as set forth in Section 7.01(h) of the
Original Credit Agreement; provided that the lease to be entered into by the
Borrower with respect to the premises at 6735 Selma Avenue, Hollywood,
California shall not be subject to the provisions of this Section 9.17.
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Section 10. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
(a) The Borrower shall default in the payment when due (whether at
stated maturity or at mandatory or optional prepayment) of (i) any
principal of any Loan or Reimbursement Obligation, (ii) any interest on
any Loan or Reimbursement Obligation or (iii) any fee or any other amount
payable by it hereunder or under any other Loan Document and, in the case
of any such default in the payment of any fee or other amount, such
default shall continue for two or more Business Days; or
(b) The Borrower or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $2,000,000 or more; or any event specified in any
note, agreement, indenture or other document evidencing or relating to any
such Indebtedness shall occur if the effect of such event is to cause, or
(with the giving of any notice or the lapse of time or both) to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, such Indebtedness to become due, or to
be prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or any event specified in any
Interest Rate Protection Agreement to which any Obligor is a party shall
occur if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit, termination or liquidation
payment or payments aggregating $2,000,000 or more to become due; or
(c) Any representation, warranty or certification made or deemed
made herein or in any other Loan Document (or in any modification or
supplement hereto or thereto) by any Obligor, or any certificate furnished
to any Lender or the Administrative Agent pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) Any of the following shall occur and be continuing: (i) the
Borrower shall default in the performance of any of its obligations under
any of Sections 9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11 or 9.16 hereof;
(ii) any Obligor shall default in the performance of any of its
obligations under Section 5.02 of the Security Agreement; or (iii) any
Obligor shall default in the
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performance of any of its other obligations in this Agreement or any other
Loan Document and such default shall continue unremedied for a period of
30 or more days after notice thereof to the Borrower by the Administrative
Agent or any Lender (through the Administrative Agent); or
(e) The Borrower or any of its Significant Subsidiaries shall admit
in writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) The Borrower or any of its Significant Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee, examiner or liquidator of itself or of
all or a substantial part of its Property, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under
the Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Borrower or any of its Significant Subsidiaries, in any
court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Borrower or such
Significant Subsidiary or of all or any substantial part of its Property,
or (iii) similar relief in respect of the Borrower or such Significant
Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order, judgment
or decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an
order for relief against the Borrower or any of its Significant
Subsidiaries shall be entered in an involuntary case under the Bankruptcy
Code; or
(h) A final judgment or judgments for the payment of money of
$2,000,000 or more in the aggregate (net of
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judgment amounts to the extent covered by insurance or indemnity where the
insurer or indemnitor, as the case may be, has admitted liability in
respect of such judgment) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Borrower or any of its Significant Subsidiaries and the same shall not be
discharged (or provision shall not be made for such discharge), or a stay
of execution thereof shall not be procured, within 45 days from the date
of entry thereof and the Borrower or the relevant Subsidiary shall not,
within said period of 45 days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(f) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Borrower or any ERISA Affiliate shall incur or, in the
opinion of the Majority Lenders, shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or the PBGC (or any combination
of the foregoing) that, in the determination of the Majority Lenders,
would (either individually or in the aggregate) have a Material Adverse
Effect; or
(j) There shall have been asserted against the Borrower or any of
its Subsidiaries, or any predecessor in interest of the Borrower or any of
its Subsidiaries or Affiliates, of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) any claims or
liabilities, whether accrued, absolute or contingent, based on or arising
from the generation, storage, transport, handling or disposal of Hazardous
Materials by the Borrower or any of its Subsidiaries, Affiliates or
predecessors that, in the reasonable judgment of the Majority Lenders, are
reasonably likely to be determined adversely to the Borrower or any of its
Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by the Borrower or any of its Subsidiaries but
after deducting any portion thereof that is reasonably expected to be paid
by other creditworthy Persons jointly and severally liable therefor); or
(k) Any of the following events shall occur and be continuing:
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(i) any person or group (within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Section 13(d) and 14(d) of the Exchange Act (other than
Warburg Pincus and the Warburg Affiliates) becomes, directly or
indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation or other business
combination or otherwise, the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 35% (or such higher
percentage as shall be owned at such time by Warburg Pincus and/or
the Warburg Affiliates) of the capital stock of the Company on a
fully-diluted basis (in other words, giving effect to the exercise
of any warrants, options and conversion and other rights);
(ii) a majority of the Board of Directors of Panavision Inc.
shall no longer be composed of individuals (x) who are members of
said Board on the Effective Date, (y) whose election or nomination
to said Board has been approved by individuals referred to in the
foregoing clause (x) constituting at the time of such election or
nomination at least a majority of said Board or (z) whose election
or nomination to said Board was approved by individuals referred to
in the foregoing clauses (x) and (y) constituting at the time of
such election or nomination at least a majority of said Board; or
(iii) Panavision Inc. shall cease to be the General Partner of
the Borrower; or
(l) The Liens created by the Security Documents shall at any time
not (other than by reason of the action of the Administrative Agent or any
of the Lenders) constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein) in
favor of the Administrative Agent, free and clear of all other Liens
(other than Liens permitted under Section 9.06 hereof or under the
respective Security Documents), or, except for expiration in accordance
with its terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the enforceability
thereof shall be contested by any Obligor;
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THEREUPON:
(1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent may, (and, upon the direction of the Majority
Lenders, shall) by notice to the Borrower, terminate the Commitments
and/or declare the principal amount then outstanding of, and the accrued
interest on, the Loans, the Reimbursement Obligations and all other
amounts payable by the Obligors hereunder and under the Notes (including,
without limitation, any amounts payable under Section 5.05 or 5.06 hereof)
to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and
(2) in the case of the occurrence of an Event of Default referred to
in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal amount
then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Borrower hereunder and under the Notes to be due
and payable), the Borrower agrees that it shall, if requested by the
Administrative Agent or the Majority Revolving Credit Lenders through the
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to the Borrower, forthwith,
without any demand or the taking of any other action by the Administrative Agent
or such Lenders) provide cover for the Letter of Credit Liabilities by paying to
the Administrative Agent immediately available funds in an amount equal to the
then aggregate undrawn face amount of all Letters of Credit, which funds shall
be held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
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Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents (and specifically as agent under the U.K.
Pledge Agreement) with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
11.05 hereof and the first sentence of Section 11.06 hereof shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Loan Documents, and shall not
by reason of this Agreement or any other Loan Document be a trustee for
any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or
in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by the
Borrower or any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Loan Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or
willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of
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any such agents or attorneys-in-fact selected by it in good faith. The
Administrative Agent may deem and treat the payee (or Registered Holder, as the
case may be) of a Note as the holder thereof for all purposes hereof unless and
until a notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent, together with the consent of the Borrower to such
assignment or transfer (to the extent required by Section 12.06(b) hereof).
11.02 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders or, if provided herein, in accordance with the instructions given by the
Majority Revolving Credit Lenders or all of the Lenders as is required in such
circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders, provided that, unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Lenders except to the extent that this
Agreement expressly requires that such action be taken, or not be taken, only
with the consent or upon the authorization of the Majority Lenders, the Majority
Revolving Credit Lenders or all of the Lenders.
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11.04 Rights as a Lender. With respect to its Commitments and the
Loans made by it, Chase (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase and its affiliates (and any such successor) and its affiliates
may accept fees and other consideration from the Obligors for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Borrower under said Section 12.03)
ratably in accordance with the aggregate principal amount of the Loans and
Reimbursement Obligations held by the Lenders (or, if no Loans or Reimbursement
Obligations are at the time outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent (including by any Lender) arising out
of or by reason of any investigation in or in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses that the Borrower
is obligated to pay under Section 12.03 hereof) or the enforcement of any of the
terms hereof or thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
11.06 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the
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Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
under any other Loan Document. The Administrative Agent shall not be required to
keep itself informed as to the performance or observance by any Obligor of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Borrower or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries (or any of
their affiliates) that may come into the possession of the Administrative Agent
or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right (with the
consent of the Borrower, such consent not to be unreasonably withheld) to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's giving
of notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon
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succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
11.09 Consents under Other Loan Documents. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Loan Documents, provided that, without the prior consent of each Lender, the
Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
the Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents,
except that no such consent shall be required, and the Administrative Agent is
hereby authorized, to release any Lien covering Property that is the subject of
either a disposition of Property permitted hereunder or a disposition to which
the Majority Lenders have consented.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.02 Notices. All notices, requests and other communications
provided for herein and in the Security Documents
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(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy), delivered to the intended recipient at the "Address
for Notices" specified below its name on the signature pages hereof (below the
name of the Borrower, in the case of any Subsidiary Guarantor); or, as to any
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Borrower agrees to pay or reimburse each of
the Lenders and the Administrative Agent for: (a) all reasonable out-of-pocket
costs and expenses of the Administrative Agent (including, without limitation,
the reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to Chase) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
making of the extensions of credit hereunder and (ii) the negotiation or
preparation of any modification, supplement or waiver of any of the terms of
this Agreement or any of the other Loan Documents (whether or not consummated);
(b) all reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.03; (c) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement or any of the other Loan Documents or any
other document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein; and (d) all
costs, expenses and other charges in respect of title insurance procured with
respect to the Liens created pursuant to the Mortgages.
The Borrower hereby agrees to indemnify the Administrative Agent and
each Lender and their respective
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directors, officers, trustees, employees, attorneys and agents from, and hold
each of them harmless against, any and all losses, liabilities, claims, damages
or expenses incurred by any of them (including, without limitation, any and all
losses, liabilities, claims, damages or expenses incurred by the Administrative
Agent to any Lender, whether or not the Administrative Agent or any Lender is a
party thereto) arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Borrower or any of its Subsidiaries of the proceeds of any
of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). Without
limiting the generality of the foregoing, the Borrower will indemnify the
Administrative Agent and each Lender from, and hold the Administrative Agent and
each Lender harmless against, any losses, liabilities, claims, damages or
expenses described in the preceding sentence (including any Lien filed against
any Property covered by the Mortgages or any part of the collateral thereunder
in favor of any governmental entity, but excluding, as provided in the preceding
sentence, any loss, liability, claim, damage or expense incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified)
arising under any Environmental Law as a result of the past, present or future
operations of the Borrower or any of its Subsidiaries (or any predecessor in
interest to the Borrower or any of its Subsidiaries), or the past, present or
future condition of any site or facility owned, operated or leased at any time
by the Borrower or any of its Subsidiaries (or any such predecessor in
interest), or any Release or threatened Release of any Hazardous Materials at or
from any such site or facility, excluding any such Release or threatened Release
that shall occur during any period when the Administrative Agent or any Lender
shall be in possession of any such site or facility following the exercise by
the Administrative Agent or any Lender of any of its rights and remedies
hereunder or under any of the Security Documents, but including any such Release
or threatened Release occurring during such period that is a continuation of
conditions previously in existence, or of practices employed by the Borrower and
its Subsidiaries, at such site or facility.
12.04 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Borrower and the Majority
Lenders, or by the
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Borrower and the Administrative Agent acting with the consent of the Majority
Lenders, and any provision of this Agreement may be waived by the Majority
Lenders or by the Administrative Agent acting with the consent of the Majority
Lenders; provided that: (a) no modification, supplement or waiver shall, unless
by an instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders (i) increase, or extend the term
of any of the Commitments, or extend the time or waive any requirement for the
reduction or termination of any of the Commitments, (ii) extend the date fixed
for any payment of principal of or interest on any Loan, the Reimbursement
Obligations or any fee hereunder, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or any fee
is payable hereunder, (v) alter the rights or obligations of the Borrower to
prepay Loans, (vi) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied as between the
Lenders or Types or Classes of Loans, (vii) alter the terms of this Section
12.04, (viii) modify the definition of the term "Majority Lenders" or "Majority
Revolving Credit Lenders", or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, (ix) release any Subsidiary
Guarantor from any of its guarantee obligations under Section 6 hereof (except
in connection with the disposition of such Subsidiary in a transaction permitted
hereunder or to which the Majority Lenders shall have consented), or (x) waive
any of the conditions precedent set forth in Section 7.01 hereof; (b) any
modification or supplement of Section 11 hereof, or of any of the rights or
duties of the Administrative Agent hereunder, shall require the consent of the
Administrative Agent; and (c) any modification or supplement of Section 6 hereof
shall require the consent of each Subsidiary Guarantor.
12.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations hereunder
or under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of
Credit Interest (but only with the consent of, (x) in the case of its
outstanding Commitments, the Borrower and the Administrative Agent, which
consent in either case shall
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not be unreasonably withheld and, (y) in the case of the Revolving Credit
Commitment or a Letter of Credit Interest, the Issuing Lender), provided that:
(i) no such consent by the Borrower, the Administrative Agent or the
Issuing Lender shall be required in the case of any assignment to another
Lender (or any of its Affiliates);
(ii) except to the extent the Borrower and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to
another Lender) shall be in an amount at least equal to $5,000,000, and
after giving effect thereto, the assigning Lender shall have Commitments
and Loans in an aggregate amount of at least $5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit
Loans, Revolving Credit Note, Revolving Credit Commitment or Letter of
Credit Interest shall be made in such manner so that the same portion of
its Revolving Credit Loans, Revolving Credit Note, Revolving Credit
Commitment and Letter of Credit Interest is assigned to the respective
assignee;
(iv) each such assignment by a Lender of its Term Loans shall be
made in such manner so that the same portion of its Term Loans and Term
Loan Commitment is assigned to the respective assignee; and
(v) each such assignment shall be effected pursuant to an Assignment
and Acceptance substantially in the form of Exhibit G hereto, executed by
the assigning Lender and the assignee and delivered to the Administrative
Agent for its acceptance and recording in the register referred to below.
Upon execution and delivery of such Assignment and Acceptance, and subject to
the consent thereto by the Borrower, the Administrative Agent and the Issuing
Lender to the extent required above, the assignee shall have, to the extent of
such assignment (unless otherwise consented to by the Borrower, the
Administrative Agent and the Issuing Lender), the obligations, rights and
benefits of a Lender hereunder holding the Commitment(s), Loans and, if
applicable, Letter of Credit Interest (or portions thereof) assigned to it and
specified in such Assignment and Acceptance (in addition to the Commitment(s),
Loans and Letter of Credit Interest, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment the
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assigning Lender shall pay the Administrative Agent an assignment fee of $3,000.
The Administrative Agent shall maintain a register for the recordation of the
names and addresses of the Lenders and the principal amount of the Loans owing
by the Borrower to each Lender from time to time. The entries in such register
shall be conclusive, in the absence of clearly demonstrable error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded therein as the owner of the Loan or Loans recorded therein for
all purposes of this Agreement. Such register shall be available for inspection
by the Borrower and any Lender at any reasonable time upon reasonable prior
notice.
(c) A Lender may sell or agree to sell to one or more other Persons
(each a "Participant") a participation in all or any part of any Loans or Letter
of Credit Interest held by it, or in its Commitments, provided that such
Participant shall not have any rights or obligations under this Agreement or any
Note or any other Loan Document (the Participant's rights against such Lender in
respect of such participation to be those set forth in the agreements executed
by such Lender in favor of the Participant). All amounts payable by the Borrower
to any Lender under Section 5 hereof in respect of Loans, Letter of Credit
Interest held by it, and its Commitments, shall be determined as if such Lender
had not sold or agreed to sell any participations in such Loans, Letter of
Credit Interest and Commitments, and as if such Lender were funding each of such
Loans, Letter of Credit Interest and Commitments in the same way that it is
funding the portion of such Loans, Letter of Credit Interest and Commitments in
which no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) extend the term of such Lender's related Commitment or
extend the amount or date of any scheduled reduction of such Commitment pursuant
to Section 2.04 hereof, (ii) extend the date fixed for the payment of principal
of or interest on the related Loan or Loans, Reimbursement Obligations or any
portion of any fee hereunder payable to the Participant, (iii) reduce the amount
of any such payment of principal, (iv) reduce the rate at which interest is
payable thereon, or any fee hereunder payable to the Participant, to a level
below the rate at which the Participant is entitled to receive such interest or
fee or (v) consent to any modification, supplement or waiver hereof or of any of
the other Loan Documents to the extent that the same, under Section 11.09 or
12.04 hereof, requires the consent of each Lender.
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(d) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 12.06, any Lender may (without
notice to the Borrower, the Administrative Agent or any other Lender and without
payment of any fee) (i) assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank and
(ii) assign all or any portion of its rights under this Agreement and its Loans
and its Notes to an affiliate. No such assignment shall release the assigning
Lender from its obligations hereunder (except that such assignment shall release
the assigning Lender to the extent the same is effected in accordance with the
provisions of paragraph (b) above).
(e) A Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Borrower or any of its Affiliates or
Subsidiaries without the prior consent of each Lender, except that this
paragraph (f) shall not prohibit any such assignment or participation to any
Affiliate of the Borrower that is a bank or trust company organized under the
laws of the United States of America or a State thereof and that is supervised
by the Office of the Comptroller of the Currency or the Board of Governors of
the Federal Reserve.
(g) At the request of any Lender that is not a U.S. Person and is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the
Borrower shall maintain, or cause to be maintained, a register (which will be
separate from the register referred to in the last sentence of Section 12.06(b)
hereof) that, at the request of the Borrower, shall be kept by the
Administrative Agent on behalf of the Borrower at no charge to the Borrower at
the address to which notices to the Administrative Agent are to be sent
hereunder, on which it enters the name of such Lender as the registered owner of
each Registered Loan held by such Lender. A Registered Loan (and the Registered
Note, if any, evidencing the same) may be assigned or otherwise transferred in
whole or in part by registration of such assignment or transfer on such register
(and each Registered Note shall expressly so provide). Any assignment or
transfer of all or part of such Loan (and the Registered Note, if any,
evidencing the same) may be effected by registration of such assignment or
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transfer on such register, together with the surrender of the Registered Note,
if any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder of such
Registered Note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new Registered Notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s). Prior to
the registration of assignment or transfer of any Registered Loan (and the
Registered Note, if any, evidencing the same), the Borrower shall treat the
Person in whose name such Loan (and the Registered Note, if any, evidencing the
same) is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding notice to the
contrary. The register referred to above in this Section 12.06(g) shall be
available for inspection by the Borrower and any Lender that is a Registered
Holder at any reasonable time upon reasonable prior notice.
12.07 Survival. The obligations of the Borrower under Sections 5.01,
5.05, 5.06, 5.07 and 12.03 hereof, the obligations of each Subsidiary Guarantor
under Section 6.03 hereof, and the obligations of the Lenders under Section
11.05 hereof, shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments and, in the case of any
Lender that may assign any interest in its Commitments, Loans or Letter of
Credit Interest hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit (whether by means of a Loan or a Letter of
Credit), herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of a Loan
or Letter of Credit), any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
12.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties
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hereto may execute this Agreement by signing any such counterpart.
12.10 Governing Law; Submission to Jurisdiction. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Obligor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County
(including, without limitation, its Appellate Division), and of any other
appellate court in the State of New York, for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Obligor hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.12 Treatment of Certain Information; Confidentiality.
(a) The Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Borrower hereby authorizes each Lender to
share any information delivered to such Lender by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, to any such subsidiary or affiliate,
it being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of Section 12.12(b) hereof as if it
were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to keep confidential, in
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accordance with their customary procedures for handling confidential information
of the same nature, any non-public information supplied to it by the Borrower
pursuant to this Agreement that is identified by the Borrower as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the disclosure of
any such information (i) after such information shall have become public (other
than through a violation of this Section 12.12), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Lenders or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Lender or the Administrative
Agent), or to auditors or accountants, (v) to the Administrative Agent or any
other Lender (or to Chase Securities, Inc.), (vi) in connection with any
litigation to which any one or more of the Lenders or the Administrative Agent
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (vii) to a subsidiary or affiliate
of such Lender as provided in Section 12.12(a) hereof or (viii) to any assignee
or participant (or prospective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant) first executes and
delivers to the respective Lender a Confidentiality Agreement substantially in
the form of Exhibit F hereto (or executes and delivers to such Lender an
acknowledgement to the effect that it is bound by the provisions of this Section
12.12(b), which acknowledgement may be included as part of the respective
assignment or participation agreement pursuant to which such assignee or
participant acquires an interest in the Loans or Letter of Credit Interest
hereunder); provided, further, that in no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
by the Borrower. The obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit F hereto shall be superseded by
this Section 12.12 upon the date upon which such assignee becomes a Lender
hereunder pursuant to Section 12.06(b) hereof.
12.13 Limitation of Liability of Partners. No Partner or any
officer, employee, servant, controlling Person, executive, director, agent,
authorized representative or affiliate of any such Partner (herein referred to
as "operatives") shall be liable for payments due hereunder or under the Notes
or other Loan Documents or for the performance of any obligation by the Obligors
hereunder or thereunder. The sole recourse of the Lenders and the Administrative
Agent for satisfaction of the obligations of the Obligors under or in respect of
this Agreement, the Notes and the other Loan Documents shall be against the
Obligors party thereto and the Collateral (as such
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term is defined in the respective Security Documents) and not against any assets
or Property of any such Partner or its operatives.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
BORROWER
PANAVISION INTERNATIONAL, L.P.
By Panavision Inc.,
its General Partner
By /s/ Jeffrey J. Marcketta
----------------------------------
Title: Executive Vice President
Address for Notices:
Panavision International, L.P.
6219 De Soto Avenue
Woodland Hills, CA 91367-2602
Attention: Jeffrey J. Marcketta
Telecopier No.: (818) 316-1110
Telephone No.: (818) 316-1000
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SUBSIDIARY GUARANTORS
[NONE AS OF THE EFFECTIVE DATE]
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LENDERS
Revolving Credit Commitment THE CHASE MANHATTAN BANK
$21,700,000.00
Term Loan Commitment By /s/ Tracey A. Navin
$9,300,000.00 ----------------------------
Title: Vice President
Lending Office for all Loans:
The Chase Manhattan Bank
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Tracey Navin
Telephone: 212-552-5953
Telecopier: 212-552-4905
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Revolving Credit Commitment CIBC INC.
$14,000,000.00
Term Loan Commitment By /s/ Cynthia H. McCahill
$6,000,000.00 ------------------------------
Title: Director
Lending Office for all Loans:
425 Lexington Avenue
8th Floor
New York, NY 10017
Address for Notices:
425 Lexington Avenue
8th Floor
New York, NY 10017
Attention: Cynthia McCahill
Telecopier No.: 212-856-3558
Telephone No.: 212-856-3971
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Revolving Credit Commitment THE FIRST NATIONAL BANK OF BOSTON
$13,300,000.00
Term Loan Commitment By /s/ Robert F. Milordi
$5,700,000.00 ---------------------------
Title: Managing Director
Lending Office for all Loans:
The First National Bank of
Boston
100 Federal Street
Boston, MA 02110
Address for Notices:
The First National Bank of
Boston
Media and Communications,
MS: 01-08-08
100 Federal Street
Boston, MA 02110
Telephone No.: (617) 434-5747
Telecopier No.: (617) 434-3401
Attention: Jeff Wakelin
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Revolving Credit Commitment THE BANK OF NOVA SCOTIA
$13,300,000.00
Term Loan Commitment By /s/ Brian S. Allen
$5,700,000.00 ----------------------------
Title: Senior Relationship
Manager
Lending Office for all Loans:
The Bank of Nova Scotia
New York Agency
One Liberty Plaza
New York, NY 10006
Address for Notices:
The Bank of Nova Scotia
New York Agency
One Liberty Plaza
New York, NY 10006
Telephone No.: (212) 225-5030
Telecopier No.: (212) 225-5090
Attention: Brian S. Allen
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Revolving Credit Commitment BANK OF HAWAII
$7,700,000.00
Term Loan Commitment By /s/ Elizabeth O. MacLean
$3,300,000.00 ---------------------------
Title: Vice President
Lending Office for all Loans:
Bank of Hawaii
130 Merchant Street
20th Floor
Honolulu, Hawaii 96813
Address for Notices:
Bank of Hawaii
1850 North Central Avenue
Suite 400
Phoenix, AZ 85004
Telephone No.: (602) 257-2437
Telecopier No.: (602) 257-2235
Attention: Beth MacLean
Credit Agreement
<PAGE>
- 123 -
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Tracey A. Navin
----------------------
Title: Vice President
Address for Notices to
the Administrative Agent:
The Chase Manhattan Bank
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Agent Bank Services
Telecopier No.: (212) 552-5658
Telephone No.: (212) 552-7400
Credit Agreement
<PAGE>
Schedule I
MATERIAL AGREEMENTS AND LIENS
[Section 8.12(a), (b) 9.07(b)]
A. MATERIAL AGREEMENTS:
Purchase order #228514 to Hughes E. L. Can in the aggregate principal
amount of $756,740 due 1996.
Purchase orders #242066 and 242067 to Hughes E. L. Can in the aggregate
principal amount of $405,650 due in 1998.
Purchase orders #241630 and 241631 to Hughes E. L. Can in the aggregate
principal amount of $377,271 due in 1996.
Purchase orders #241369, 241370 and 241371 to Hughes E. L. Can in the
aggregate principal amount of $1,127,968 due in 1997 and 1998.
B. LIENS:
None.
Schedule I
<PAGE>
SCHEDULE II
SUBSIDIARIES AND INVESTMENTS
[Section 8.15(a), (b)]
A. Subsidiaries.
WHOLLY-OWNED SUBSIDIARIES OF PANAVISION EUROPE LIMITED
THE BORROWER Place of Incorporation: United Kingdom
Authorized 9,000,000 shares
Issued and fully paid 8,800,002 ordinary
shares of L1.00 par value
Percentage Owned: 100% of Issued Shares
PANAVISION CANADA HOLDINGS, INC.
Place of Incorporation: Ontario
Authorized capital: an unlimited number
of common shares
Issued: 2,500 common shares
Percentage Owned: 100% of Issued Shares
WHOLLY-OWNED SUBSIDIARIES OF LEE FILTERS LIMITED
PANAVISION EUROPE LIMITED Place of Incorporation: United Kingdom
Authorized 1,000 shares Issued and fully
paid 2 ordinary shares of L1.00 par value
Percentage Owned: 100% of Issued Shares
CAMERA BELLOWS LIMITED
Place of Incorporation: United Kingdom
Authorized 1,000 shares Issued and fully
paid 2 ordinary shares of L1.00 par value
Percentage Owned: 100% of Issued Shares
SCHEDULE II
<PAGE>
COLORTRAN LIMITED
Place of Incorporation: United Kingdom
Authorized 100 shares Issued and fully
paid 2 shares of
L1.00 par value
Percentage Owned: 100% of Issued Shares
JOE DUNTON CAMERAS LIMITED
Place of Incorporation: United Kingdom
Authorized 100 shares of L1.00 par value
Percentage Owned: 100% of Issued Shares
WHOLLY-OWNED SUBSIDIARY OF PANAVISION (CANADA) CORPORATION
PANAVISION CANADA Place of Incorporation: Ontario
HOLDINGS, INC. Authorized share capital: an unlimited
number of class A, B, C, D and E common
shares Issued 100,000 common shares
Percentage Owned: 100% Management Options:
Pursuant to an Employee Share Purchase
and Shareholders Agreement, dated as of
January 20, 1995, among the Borrower,
Panavision Canada Holdings, Inc., Panavision
(Canada) Corporation and certain Management
Employees named therein, the Borrower has
granted the Management Employees certain
options to purchase shares of Panavision
Canada Holdings, Inc. on a fully diluted
basis. The Management Employees may purchase
up to 15% collectively of the issued and
outstanding shares.
SCHEDULE II
<PAGE>
SCHEDULE II
<PAGE>
WHOLLY-OWNED SUBSIDIARY OF PANA TRUCK LEASING CORPORATION
PANAVISION (CANADA) CORPORATION Place of Incorporation: Ontario
Authorized share capital: unlimited
Issued 100 shares, par value $1.00 per share
Percentage Owned: 100% of issued shares.
SUBSIDIARY OF PANAVISION PANAVISION ITALIA S.R.L.
EUROPE LTD. Place of Incorporation: Italy
Authorized 65,000,000 Italian Lire
Panavision Europe Ltd. owns 64,946,000
Italian Lire.
Percentage Owned: 100%
B. Investments:
PANY Rental, Inc. (New York) The Borrower owns $333 in
common stock which represents 33% ownership.
The Borrower has a $450,000 note receivable
due May 30, 2004 which bears interest at 9%
per year.
Aaton S.A. (Grenoble, France) The Borrower paid $924,507 for
21,594 shares of common stock which
represents 45% ownership. The Borrower
holds 50% of the voting stock.
Cosharp Printer Number One The Borrower paid $12,499 for
one unit of thirty outstanding partnership
units which represents 3.3% ownership.
Panavision Inc. (Delaware) The Borrower Loaned $48,125,600 to
Panavision Inc. in exchange for a Demand
Note which bears interest at the rate of
6.83% per annum.
SCHEDULE II
<PAGE>
Schedule III
REAL PROPERTY
LEASES: [Section 8.18]
PROPERTY ADDRESS LANDLORD EXPIRATION DATE
- ---------------- -------- ---------------
Panavision Tarzana Trizec Properties Inc. May 30, 2012
6219 Desoto Ave.
Woodland Hills, CA 91367
Panavision Hollywood McCadden Place Partners December 31, 1996
6779 Hawthorne Ave.
Hollywood, CA 90028
Panavision Hollywood (This is Hollywood's new December 31, 2006
6735 Selma Ave. building lease which is
Hollywood, CA 90028 scheduled to start 1/1/97)
Panavision Florida/N.C. Universal City Florida Partners January 31, 1998
2000 Universal Studios
Plaza Suite 900
Orlando, FL 32819-7606
Panavision Florida/N.C. Carolco Studios Inc. Month to month
1223 No. 23rd St.
Wilmington, NC 28405
Panavision Tarzana VP Self Storage Month to month
VP Self Storage
18716 Oxnard St.
Unit 2310
Tarzana, CA 91356
Corporate New York Conde Nast Publications January 6, 1999
Two Grand Center Tower
140 East 45th Street
35th Floor
New York, NY 10017
Panavision Canada A. Farber Associates, Trustee Month to Month
629 Eastern Avenue in Bankruptcy for Eastern Mall
Toronto, Ontario M4M 1E4 Limited
Canada
SCHEDULE III
<PAGE>
PROPERTY ADDRESS LANDLORD EXPIRATION DATE
- ---------------- -------- ---------------
Panavision Canada I. Trasolini Month to month
3999 Second Ave.
Burnaby, B.C. V5C 3W9
Canada
Lee Filters U.S. Kenneth J. Maurer & May 14, 1997
2301 W. Victory Blvd. Ema W. Maurer, Trustees under
Burbank, CA 91506 the Kenneth & Ema Maurer
family trust
Lee Filters U.S. Mejor Verde L.L.C. January 31, 1999
375 North St.
Unit F
Teterboro, NJ 07608
Panavision Europe Shepperton Studios LTD March 30, 1999
Part Building 37 & Room
310 in the Old House
Shepperton Studios
Studios Road, Shepperton
Middlesex, TW17 0QD
United Kingdom
Panavision Europe Thames Water Utilities LTD August 30, 1999
Pipetrack Land at
Wycombe Road
Wembley, Middlesex TW17 0QD
United Kingdom Sunset Developments LTD January 31, 1998
Panavision Europe
Unit 13, Sunset Business Centre
Manchester Road,
Kearsley
Bolton BL4 8SG
United Kingdom
SCHEDULE III
<PAGE>
PROPERTY ADDRESS LANDLORD EXPIRATION DATE
- ---------------- -------- ---------------
Panavision Europe Keyfield Property Company LTD March 17, 1997
Cinema House
93 Wardour Street
London, W1V 3TE
United Kingdom
Panavision Europe Council of the Valley July 5, 2004
Unit 3, Kingsway
Walworth Industrial
Estate
Andover, Hants
United Kingdom Test Valley Borough Council July 6, 2108
Panavision Europe
Plot 38, Walworth
Industrial Estate
Andover, Hampshire
United Kingdom
Panavision Europe Ardmore Studios September 12, 1996
Ardmore Studios
Herbert Road, Bray
County Wicklow, Ireland
Panavision Europe Mr. & Mrs. Kirchheim Six month notice
17 Avenue Victor Hugo as of June 15, 1996
92220 Bagneux
Paris, France
Owned:
Panavision Europe N/A
Binatone Plaza
Wycombe Road, Wembly
Middlesex, HAO 10N
United Kingdom
Panavision Europe N/A
Wycombe Road, Wembley
Middlesex, HAO 10N
United Kingdom
SCHEDULE III
<PAGE>
PROPERTY ADDRESS LANDLORD EXPIRATION DATE
- ---------------- -------- ---------------
The following property is subleased by the Borrower:
Dataproducts, Inc. N/A January 31, 1998
6219 Desoto Ave.
Woodland Hills, CA 91367
SCHEDULE III
<PAGE>
Schedule IV
PARTNERSHIP AND OTHER EQUITY INTERESTS OF THE BORROWER
[Section 8.14]
A. [Section 8.14(a)]
Partners Nature of Interest Interest
Panavision Inc. General Partner 40 General Partner
Class A Units
70 General Partner
Class B Units
Panavision Inc. Limited Partner 170 Class A Units
560 Class B Units
Sr. Equity Units ($12.5mm)
Keepco I, Inc. Limited Partner 350 Class A Units
150 Class B Units
Sr. Equity Units ($20mm)
Keepco II, Inc. Limited Partner 350 Class A Units
150 Class B Units
Sr. Equity Units ($20mm)
WCS-Panavision Corporation Limited Partner 90 Class A Units
70 Class B Units
B. [Section 8.14(b)]
None.
SCHEDULE IV
<PAGE>
Schedule V
LITIGATION
[Section 8.03]
None.
SCHEDULE V
<PAGE>
Schedule VI
TAXES
[Section 8.09]
None.
SCHEDULE VI
<PAGE>
Schedule VII
ENVIRONMENTAL MATTERS
[Section 8.13]
UNITED KINGDOM
As required by the Environmental Protection Act (1990 United Kingdom), Lee
Filters is required to reduce the emission of Volatile Organic Compounds
(VOC's) into the atmosphere to comply with new stringent UK emission
standards. The control technology selected has a possible cost of
L1,300,000. Orders must be placed by December 31, 1996 in order to
demonstrate full compliance by the final date.
SCHEDULE VII
<PAGE>
EXHIBIT A-1
[Form of Revolving Credit Note]
PROMISSORY NOTE
Principal Sum $_______________ __________, 1996
Lender: ______________________ New York, New York
FOR VALUE RECEIVED, PANAVISION INTERNATIONAL, L.P., a Delaware limited
partnership (the "Borrower"), hereby promises to pay to the Lender set forth
above (the "Lender") [or registered assigns], for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to
below, at the principal office of The Chase Manhattan Bank in New York, New
York, the Principal Sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Revolving Credit Loans
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Revolving Credit Loan, at
such office, in like money and funds, for the period commencing on the date of
such Revolving Credit Loan until such Revolving Credit Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the register maintained for
such purpose by or on behalf of the Borrower as provided in Section 12.06(g) of
the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Revolving Credit Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Revolving Credit Loans made by the Lender.
This Note is one of the Revolving Credit Notes [(constituting a
Registered Note)] referred to in the Second Amended and Restated Credit
Agreement dated as of December 5,
______________________________
1 Bracketed language to be inserted into Registered Notes
REVOLVING CREDIT NOTE
<PAGE>
- 2 -
1996 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") between the Borrower, the Subsidiary Guarantors party thereto, the
lenders party thereto (including the Lender) and The Chase Manhattan Bank, as
Administrative Agent, and evidences Revolving Credit Loans made by the Lender
thereunder. Terms used but not defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
PANAVISION INTERNATIONAL, L.P.
By Panavision Inc.,
its General Partner
By_________________________
Title:
REVOLVING CREDIT NOTE
<PAGE>
- 3 -
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower, on the
dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below,
subject to the payments, Continuations, Conversions and prepayments of principal
set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Covnerted Amount Made by
- ---------- ----- ----- -------- -------- --------- ------ --------
<PAGE>
EXHIBIT A-2
[Form of Term Loan Note]
PROMISSORY NOTE
Principal Sum $_______________ ___________, 1996
Lender: _____________________ New York, New York
FOR VALUE RECEIVED, PANAVISION INTERNATIONAL, L.P., a Delaware limited
partnership (the "Borrower"), hereby promises to pay to the Lender set forth
above (the "Lender") [or registered assigns], for account of its respective
Applicable Lending Offices provided for by the Credit Agreement referred to
below, at the principal office of The Chase Manhattan Bank in New York, New
York, the Principal Sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Term Loans made by the
Lender to the Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Term Loan, at such office, in like
money and funds, for the period commencing on the date of such Term Loan until
such Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the register maintained for
such purpose by or on behalf of the Borrower as provided in Section 12.06(g) of
the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Term Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Facility
A Term Loans made by the Lender.
This Note is one of the Term Loan Notes [(constituting a Registered
Note)] referred to in the Second Amended and Restated Credit Agreement dated as
of December 5, 1996 (as modified and supplemented and in effect from time to
time, the
______________________________
2 Bracketed language to be inserted into Registered Notes
TERM LOAN NOTE
<PAGE>
- 2 -
"Credit Agreement") between the Borrower, the Subsidiary Guarantors party
thereto, the lenders party thereto (including the Lender) and The Chase
Manhattan Bank, as Administrative Agent, and evidences Term Loans made by the
Lender thereunder. Terms used but not defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Term
Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
PANAVISION INTERNATIONAL, L.P.
By Panavision Inc.,
its General Partner
By_________________________
Title:
TERM LOAN NOTE
<PAGE>
- 3 -
SCHEDULE OF TERM LOANS
This Note evidences Term Loans made, Continued or Converted under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Covnerted Amount Made by
- ---------- ----- ----- -------- -------- --------- ------ --------
TERM LOAN NOTE
<PAGE>
EXHIBIT B
[Form of Amendment No. 1 to Security Agreement]
AMENDMENT NO. 1 TO SECURITY AGREEMENT
AMENDMENT NO. 1 TO SECURITY AGREEMENT dated as of May 8, 1996 between
PANAVISION INTERNATIONAL, L.P., a Delaware limited partnership (the "Borrower");
each of the subsidiaries of the Borrower identified under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereof (individually, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors"); and THE
CHASE MANHATTAN BANK, as agent for the lenders or other financial institutions
party, as lenders, to the Second Amended and Restated Credit Agreement referred
to below (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Borrower, the Subsidiary Guarantors and the Administrative Agent
are parties to a Security Agreement dated as of May 8, 1996 (the "Security
Agreement"), pursuant to which the Borrower and the Subsidiary Guarantors
have pledged and granted a security interest in the Collateral (as defined
therein) as security for the Secured Obligations (as so defined) including,
inter alia, obligations of the Borrower and the Subsidiary Guarantors under a
Credit Agreement dated as of May 8, 1996 (the "Original Credit Agreement")
between the Borrower, the Subsidiary Guarantors, certain lenders and the
Administrative Agent, as amended by an Amended and Restated Credit Agreement
dated as of September 10, 1996 (the "Existing Credit Agreement") between the
Borrower, the Subsidiary Guarantors, certain lenders and the Administrative
Agent. Concurrently with the execution and delivery of this Amendment, the
parties to the Existing Credit Agreement are amending and restating the
Existing Credit Agreement to decrease the amount of credit available
thereunder and to amend certain of the other provisions thereof pursuant to a
Second Amended and Restated Credit Agreement dated as of December 5, 1996 (as
modified and supplemented and in effect from time to time, the "Restated
Credit Agreement").
To induce said lenders to amend and restate the Existing Credit
Agreement pursuant to the Restated Credit Agreement, and to extend credit
thereunder, the parties hereto wish to amend the Security Agreement in
certain respects, and accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment, terms defined in the Security Agreement are used herein as defined
therein.
AMENDMENT NO. 1 TO SECURITY AGREEMENT
<PAGE>
- 2 -
Section 2. Amendments. Upon the execution and delivery of this
Amendment by the Company and the Agent, but effective as of the date hereof,
the Security Agreement shall be amended as follows:
A. References in the Security Agreement to "this Agreement" shall
be deemed to be references to the Security Agreement as amended hereby.
B. References in the Security Agreement to the "Credit Agreement"
shall be deemed to be references to the Restated Credit Agreement.
Section 3. Confirmation of Pledge. Each of the Securing Parties
hereby confirms its prior pledge and grant to the Administrative Agent, for
the benefit of the Lenders party to the Restated Credit Agreement, of a
security interest in all of its right, title and interest in and to the
Collateral.
Section 4. Miscellaneous. Except as herein provided, the Security
Agreement shall remain unchanged and in full force and effect. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument and any of
the parties hereto may execute this Amendment by signing any such
counterpart. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
AMENDMENT NO. 1 TO SECURITY AGREEMENT
<PAGE>
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to Security Agreement to be duly executed and delivered as of the day
and year first above written.
PANAVISION INTERNATIONAL, L.P.
By Panavision Inc.,
its General Partner
By_________________________
Title:
SUBSIDIARY GUARANTORS
[NONE AS OF THE DATE HEREOF]
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_________________________
Title:
AMENDMENT NO. 1 TO SECURITY AGREEMENT
<PAGE>
EXHIBIT C
[Letterhead of Willkie Farr & Gallagher]
December 5, 1996
To the Lenders party to the Credit
Agreement referred to below and
The Chase Manhattan Bank,
as Administrative Agent
Re: Panavision International, L.P.
------------------------------
Ladies and Gentlemen:
We have acted as New York counsel to Panavision International, L.P., a
Delaware limited partnership (the "Company"), and its general partner,
Panavision Inc., a Delaware corporation (the "General Partner"), in connection
with (i) the Second Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of December 5, 1996, between the Company, the Subsidiary
Guarantors party thereto, the Lenders party thereto and The Chase Manhattan
Bank, as Administrative Agent, providing for extensions of credit to be made by
said Lenders to the Company in an aggregate principal amount not exceeding
$100,000,000 and (ii) the various other agreements, instruments and other
documents referred to in the next following paragraph. Except as otherwise
provided herein, terms defined in the Credit Agreement are used herein as
defined therein. This opinion letter is being delivered pursuant to
Section 7.01(f) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 2
(b) the Notes being executed and delivered on the date hereof to the
Lenders on the date hereof (the "Notes");
(c) the Security Agreement dated as of May 8, 1996, between the
Borrower, certain of the Obligors and the Administrative Agent,
as amended by Amendment No. 1 thereto (the "Security Agreement");
(d) the Second Modification of Leasehold Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing with respect to the
Mortgage of the Woodland Hills Lease dated as of December 5, 1996
(the "Second Modification"); and
(e) such records of the Company and the General Partner and such
other documents as we have deemed necessary as a basis for the
opinions expressed below.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses (other than clause (e) above) are collectively referred to as
the "Credit Documents".
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon statements of governmental officials and upon representations made in or
pursuant to the Credit Documents and certificates of appropriate representatives
of the Company and the General Partner.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Company and the General Partner):
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 3
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid,
binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly authorized;
and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents.
We are members of the bar of the State of New York only; and we
express no opinion as to the laws of any jurisdiction other than the law of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States of America (the "SUBJECT LAWS").
To the extent that any opinion herein is given to the "Actual
Knowledge of the Primary Lawyer Group", such phrase means the conscious
awareness of facts or other information by any attorney of this firm who signed
this opinion, had active involvement in negotiating any of the Credit Documents
or is primarily responsible for providing any opinion contained herein.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 4
1. The Company is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
General Partner is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
2. The Company has all requisite partnership power to execute and
deliver and to perform its obligations under the Credit Documents. The
General Partner has the corporate power to execute and deliver on behalf of
the Company all Credit Documents to which the Company is a party. The
Company has all requisite partnership power to borrow under the Credit
Agreement.
3. The execution, delivery and performance by the Company and the
borrowings by the Company under the Credit Agreement, have been duly
authorized by all necessary partnership action on the part of the Company.
The execution and delivery by the General Partner on behalf of the Company
of the Credit Documents have been duly authorized by all corporate action
on the part of the General Partner.
4. Each Credit Document has been duly executed and delivered by the
Company.
5. Each of the Credit Documents (other than the Second Modification
and the provisions of the Security Agreement relating to any Trademark
Collateral (as defined in the Security Agreement), as to which we express
no opinion) constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except as may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 5
considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency under
the Subject Laws is required on the part of the Company or the General
Partner for the execution, delivery or performance by any Person of any of
the Credit Documents or for the borrowings by the Company under the Credit
Agreement, except for the filing of Uniform Commercial Code financing
statements in respect of the Liens created pursuant to the Security
Documents and recordings in respect of the Liens created pursuant to the
Mortgage with respect to the Woodland Hills Lease.
7. The execution, delivery and performance by the Company of, and the
consummation by the Company of the transactions contemplated by, the Credit
Documents to which the Company is a party do not and will not (a)
contravene the Company's certificate of limited partnership or its amended
and restated partnership agreement, (b) violate any provision of the
charter or by-laws of the General Partner, (c) violate any applicable law,
rule or regulation under the Subject Laws, or (d) to the Actual Knowledge
of the Primary Lawyer Group violate any order, writ, injunction or decree
of any court or governmental authority or agency or any arbitral award
applicable to the Company or the General Partner.
8. The execution, delivery and performance by the Company and the
consummation by the Company of the transactions contemplated by, the Credit
documents to which it is a party do not and will not, to the Actual
Knowledge of the Primary Lawyer Group, result in a breach of, constitute a
default under, require any
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 6
consent (except any which has been obtained) under, or result in the
acceleration or required prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound or to which any of
them is subject, or (except for the Liens created pursuant to the Security
Documents) result in the creation or imposition of any Lien upon any
Property of the Company or any of its Subsidiaries pursuant to, the terms
of any such agreement or instrument.
9. To the Actual Knowledge of the Primary Lawyer Group, there are no
legal or arbitral proceedings, or proceedings by or before any governmental
or regulatory authority or agency, pending or threatened against or
affecting the Company or its Subsidiaries or any of their respective
Properties that, if adversely determined, could have a Material Adverse
Effect.
10. The Security Agreement is effective to create, in favor of the
Administrative Agent for the benefit of the Administrative Agent and the
Lenders, a valid security interest under the Uniform Commercial Code as in
effect in the State of New York (the "UNIFORM COMMERCIAL CODE") in all of
the right, title and interest of the Company in, to and under the
Collateral (as defined in the Security Agreement) owned by the Company as
collateral security for the payment of the Secured Obligations (as defined
in the Security Agreement) of the Company, except that (a) such security
interest will continue in Collateral after its sale, exchange or other
disposition only to the extent provided in Sections 9-306 and 9-307 of the
Uniform Commercial Code, (b) the security interest in Collateral in which
the Company acquires rights after the commencement of a case under the
Bankruptcy Code in respect of the Company may be limited by Section
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 7
552 of the Bankruptcy Code and (c) the creation of a security interest in
any Pledged Stock (as defined in the Security Agreement) constituting a
"security" (as defined in Section 8-102(1)(c) of the Uniform Commercial
Code) requires the transfer of said Pledged Stock to the Administrative
Agent pursuant to Section 8-313(1) of the Uniform Commercial Code, which
transfer in the case of a "certificated security" (as defined in
Section 8-102(1)(a) of the Uniform Commercial Code) may be effected in the
manner contemplated by paragraph 11 below.
11. The security interest referred to in paragraph 10 above in that
portion of the Collateral (as defined in the Security Agreement) consisting
of a certificated security (including the Pledged Stock under and as
defined in the Security Agreement) or an instrument (as defined in
Section 9-105(1)(i) of the Uniform Commercial Code) will, upon the creation
of such security interest, be perfected by the Administrative Agent taking
and thereafter retaining possession thereof (or any certificates
representing any such certificated security) in the State of New York.
12. With respect to any portion of the Collateral (as defined in the
Security Agreement) consisting of a certificated security (including the
Pledged Stock under and as defined in the Security Agreement), if such
security interest therein is perfected by the Administrative Agent in the
manner specified in paragraph 11 above in good faith and without notice of
any adverse claim (as defined in Section 8-302(2) of the Uniform Commercial
Code) and indorsed to the Administrative Agent or in blank, any perfected
security interest therein will have priority over all other security
interests theretofore or thereafter created under the Uniform Commercial
Code, except that the priority of the Administrative Agent's security
interest therein may be subject to liens on securities referred to in
Section 8-321(2) of the
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 8
Uniform Commercial Code which may be perfected for a period of 21 days
after transfer pursuant to Section 8-313(1)(i) thereof without any further
action.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 12.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be limited
by (i) laws rendering unenforceable indemnification contrary to Federal or
state securities laws and the public policy underlying such laws and (ii)
laws limiting the enforceability of provisions exculpating or exempting a
party, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) Clause (iii) of the second sentence of Section
6.02 of the Credit Agreement may not be enforceable to the extent that the
Guaranteed Obligations are materially altered.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 12.10 of the Credit Agreement (and any similar
provisions in any of the other Credit Documents), insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to any of the Credit Documents, (iv) whether a Federal of
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 9
state court outside of the State of New York would give effect to the
choice of New York law provided for in the Credit Documents, or (v) the
waiver of inconvenient forum set forth in the third sentence of Section
12.10 of the Credit Agreement (and any similar provisions in any of the
other Credit Documents) with respect to proceedings in the United States
District Court for the Southern District of New York.
(E) We wish to point out that the obligations of the Company, and the
rights and remedies of the Administrative Agent and the Lenders, under the
Security Agreement may be subject to possible limitations upon the exercise
of remedial or procedural provisions contained in the Security Agreement,
provided that such limitations do not, in our opinion (but subject to the
other comments and qualifications set forth in this opinion letter), make
the remedies and procedures that will be afforded to the Administrative
Agent and the Lenders inadequate for the practical realization of the
substantive benefits purported to be provided to the Administrative Agent
and the Lenders by the Security Agreement.
(F) With respect to our opinion in paragraphs 10, 11 or 12 above, we
express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any Collateral (as defined in the
Security Agreement) (i) to the extent that, pursuant to Section 9-104 of
the Uniform Commercial Code, Article 9 of the Uniform Commercial Code does
not apply thereto, (ii) consisting of uncertificated securities (as defined
in Section 8-102(b) of the Uniform Commercial Code), (iii) consisting of
fixtures, timber to be cut or minerals (including oil and gas) or
(iv) covered by a certificate of title.
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 10
(G) We wish to point out that the acquisition by the Company after
the initial extension of credit under the Credit Agreement of an interest
in Property that becomes subject to the Lien of the Security Agreement may
constitute a voidable preference under Section 547 of the Bankruptcy Code.
(H) We express no opinion as to the existence of, or the right, title
or interest of the Company in, to or under, any of the Collateral (as
defined in the Security Agreement).
(I) Except as expressly provided in paragraphs 10 through 12 above,
we express no opinion as to the creation, perfection or priority of any
security interest in, or other Lien on, the Collateral (as defined in the
Security Agreement).
(J) We have made no independent investigations except as
specifically set forth herein.
(K) We further advise you that we are not assuming any obligation to
notify the Administrative Agent or the Lenders of any changes in this
opinion as a result of any facts that may come to our attention in the
future which may cause a change in this opinion, including any action
necessary to maintain perfection of the security interest referred to in
this opinion.
<PAGE>
Willkie Farr & Gallagher
December 5, 1996
Page 11
At the request of our clients, this opinion letter is, pursuant to
Section 7.01(f) of the Credit Agreement, provided to you by us in our capacity
as counsel to the Company and the General Partner and may not be relied upon by
any Person (except any permitted assignee of a Lender, who may rely upon this
opinion as if it were addressed to it) for any purpose other than in connection
with the transactions contemplated by the Credit Agreement without, in each
instance, our prior written consent.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
EXHIBIT D
[Letterhead of Milbank, Tweed, Hadley & McCloy]
December 5, 1996
To the Lenders party to the Credit
Agreement referred to below and
The Chase Manhattan Bank, as
Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
("Chase") in connection with (i) the Second Amended and Restated Credit
Agreement (the "CREDIT AGREEMENT") dated as of December 5, 1996 between
Panavision International, L.P. (the "BORROWER"), the Subsidiary Guarantors party
thereto, the lenders party thereto and Chase, as Administrative Agent, providing
for extensions of credit to be made by said lenders to the Borrower in an
aggregate principal amount not exceeding $100,000,000 and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Except as otherwise provided herein, terms defined in the Credit
Agreement are used herein as defined therein. This opinion letter is being
delivered pursuant to Section 7.01(g) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes being executed and delivered on the date hereof to
the Lenders on the date hereof (the "NOTES");
<PAGE>
- 2 -
(c) the Security Agreement dated as of May 8, 1996, between the
Borrower, certain of the Obligors and the Administrative
Agent, as amended by Amendment No. 1 thereto (the "SECURITY
AGREEMENT"; and
(d) such records of the Borrower and such other documents as we
have deemed necessary as a basis for the opinions expressed
below.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses (other than clause (d) above) are collectively referred to as
the "CREDIT DOCUMENTS".
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon representations made in or pursuant to the Credit Documents.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth in
the opinions expressed below as to the Borrower) constitute
legal, valid, binding and enforceable obligations of, all of the
parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (partnership,
corporate or other) to execute, deliver and perform such
documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws relating to or affecting the rights of creditors generally and
except as the enforceability of the Credit Documents is subject to the
<PAGE>
- 3 -
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith and
fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 12.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be limited
by (i) laws rendering unenforceable indemnification contrary to Federal or
state securities laws and the public policy underlying such laws and (ii)
laws limiting the enforceability of provisions exculpating or exempting a
party, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) Clause (iii) of the second sentence of Section 6.02 of the Credit
Agreement may not be enforceable to the extent that the Guaranteed
Obligations are materially altered.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 12.10 of the Credit Agreement (and any similar
provisions in any of the other Credit Documents), insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to any of the Credit Documents, (iv) whether a Federal of state
court outside of the State of New York would give effect to the choice of
New York law provided for in the Credit Documents, or (v) the waiver of
inconvenient forum set forth in the third sentence of Section 12.10 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents) with respect to proceedings in
<PAGE>
- 4 -
the United States District Court for the Southern District of New York.
(E) We wish to point out that the obligations of the Borrower, and
the rights and remedies of the Administrative Agent and the Lenders, under
the Security Agreement may be subject to possible limitations upon the
exercise of remedial or procedural provisions contained in the Security
Agreement, provided that such limitations do not, in our opinion (but
subject to the other comments and qualifications set forth in this opinion
letter), make the remedies and procedures that will be afforded to the
Administrative Agent and the Lenders inadequate for the practical
realization of the substantive benefits purported to be provided to the
Administrative Agent and the Lenders by the Security Agreement.
(F) We express no opinion as to the creation, perfection or priority
of any security interest in, or other Lien on, the Collateral (as defined
in the Security Agreement).
(G) We note that there are no Subsidiary Guarantors party to the
Credit Documents on the date hereof.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to
Section 7.01(g) of the Credit Agreement, provided to you by us in our capacity
as special New York counsel to Chase and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy
WJM/RJW
<PAGE>
EXHIBIT E
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of ____________ __, 199_, by
_______________________, a ______________ corporation (the "ADDITIONAL
SUBSIDIARY GUARANTOR"), in favor of THE CHASE MANHATTAN BANK, as administrative
agent for the lenders or other financial institutions or entities party,
lenders, to the Credit Agreement referred to below (in such capacity together
with its successors in such capacity, the "ADMINISTRATIVE AGENT").
Panavision International, L.P., a Delaware limited partnership, the
"Subsidiary Guarantors" referred to therein, certain lenders named therein (the
"LENDERS"), and the Administrative Agent are parties to a Second Amended and
Restated Credit Agreement dated as of December 5, 1996 (as modified and
supplemented and in effect from time to time, the "CREDIT AGREEMENT").
Pursuant to Section 9.15(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement, and a "Securing Party" for all purposes of the
Security Agreement. Without limiting the generality of the foregoing, the
Additional Subsidiary Guarantor hereby, jointly and severally with the other
Subsidiary Guarantors, guarantees to each Lender and the Administrative Agent
and their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations (as defined in Section 6.01 of the Credit Agreement) in the same
manner and to the same extent as is provided in Section 6 of the Credit
Agreement. In addition, the Additional Subsidiary Guarantor hereby makes the
representations and warranties set forth in Sections 8.01, 8.04, 8.05 and 8.06
of the Credit Agreement, and in Section 2 of the Security Agreement, with
respect to itself and its obligations under this Agreement (with any reference
in said Sections to the Loan Documents being deemed to include a reference to
this Agreement). In addition, Annexes 1, 2, 3 and 4 to the Security Agreement
shall be deemed to be supplemented in respect of the Additional Subsidiary
Guarantor as specified in Appendix A hereto.
GUARANTEE ASSUMPTION AGREEMENT
<PAGE>
- 2 -
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[ADDITIONAL SUBSIDIARY GUARANTOR]
By_____________________________
Title:
Accepted and Agreed:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_________________________
Title:
GUARANTEE ASSUMPTION AGREEMENT
<PAGE>
APPENDIX A
Supplement to Annex 1:
[To be completed]
Supplement to Annex 2:
[To be completed]
Supplement to Annex 3:
[To be completed]
Supplement to Annex 4:
[To be completed]
GUARANTEE ASSUMPTION AGREEMENT
<PAGE>
EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Second Amended and Restated Credit Agreement dated as of
December 5, 1996 (the "CREDIT AGREEMENT") between Panavision
International, L.P. (the "BORROWER"), the Subsidiary
Guarantors party thereto, the lenders party thereto and The
Chase Manhattan Bank, as Administrative Agent.
Dear Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have agreed with the
Borrower pursuant to Section 12.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Borrower as being confidential at the
time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 12.12, we are permitted to provide you, as
a prospective [holder of a participation in the Loans (as defined in the Credit
Agreement)] [assignee Lender], with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives and for the benefit of us and each Obligor) that (A) such
information will not be used by you except in connection with the proposed
[participation] [assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, PROVIDED that nothing herein
shall limit the disclosure of any such information (i) after such information
shall have become public (other than through a
CONFIDENTIALITY AGREEMENT
<PAGE>
- 2 -
violation of Section 12.12 of the Credit Agreement), (ii) to the extent required
by statute, rule, regulation or judicial process, (iii) to your counsel or to
counsel for any of the Lenders or the Administrative Agent, (iv) to bank
examiners (or any other regulatory authority having jurisdiction over you or any
Lender or the Administrative Agent), or to auditors or accountants, (v) to the
Administrative Agent or any other Lender (or to Chase Securities, Inc.), (vi) in
connection with any litigation to which you or any one or more of the Lenders or
the Administrative Agent are a party, or in connection with the enforcement of
rights or remedies under the Credit Agreement or under any other Loan Document,
(vii) to a subsidiary or affiliate of yours as provided in Section 12.12(a) of
the Credit Agreement or (viii) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) first executes and delivers to you a Confidentiality
Agreement substantially in the form hereof; PROVIDED, FURTHER, that in no event
shall you be obligated to return any materials furnished to you pursuant to this
Confidentiality Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 12.12 of the Credit
Agreement on the date upon which you become a Lender under the Credit Agreement
pursuant to Section 12.06(b) thereof.
CONFIDENTIALITY AGREEMENT
<PAGE>
- 3 -
Please indicate your agreement to the foregoing by signing as provided
below the enclosed copy of this Confidentiality Agreement and returning the same
to us.
Very truly yours,
[INSERT NAME OF LENDER]
By_________________________
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________
CONFIDENTIALITY AGREEMENT
<PAGE>
EXHIBIT G
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement
dated as of December 5, 1996, as amended, supplemented or otherwise modified
from time to time (the "CREDIT AGREEMENT"), among Panavision International, L.P.
(the "BORROWER"), each of the subsidiary guarantors party thereto (each a
"SUBSIDIARY GUARANTOR", and, collectively, the "SUBSIDIARY GUARANTORS" and,
together with the Borrower, the "OBLIGORS"), each of the lenders party thereto
(each a "LENDER", and, collectively, the "LENDERS"), and The Chase Manhattan
Bank, as administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement are used herein
with the same meanings.
[___________] (the "ASSIGNOR") and [__________] (the "ASSIGNEE") agree
as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date set forth in Schedule 1 hereto (the "EFFECTIVE DATE"), an
interest (the "ASSIGNED INTEREST") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as set forth on Schedule 1 (individually, an
"ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal
amount and percentage for each Assigned Facility as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, the other Loan Documents or
any other instrument or document furnished pursuant thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto, other than that it has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower, any of its Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of its Subsidiaries or any other obligor of any
of their respective obligations under the Credit Agreement, any other Loan
Document or any other instrument or
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
- 2 -
document or any other instrument or document furnished pursuant hereto or
thereto; and (iii) attaches the Note(s) held by it evidencing the Assigned
Facilities and requests that the Administrative Agent exchange such Note(s) for
a new Note or Notes payable to the Assignor (if the Assignor has retained any
interest in the Assigned Facility) and a new Note or Notes payable to the
Assignee in the respective amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Sections [9.01(b) and (c)] thereof,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (iii) agrees that it will, independently and without reliance upon
the Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (v) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance by it and recording by
the Administrative Agent pursuant to Section 12.06(b) of the Credit Agreement,
effective as of the Effective Date which date shall not, unless otherwise agreed
to by the Administrative Agent, be earlier than five Business Days after the
date of such acceptance and recording by the Administrative Agent and shall in
no event be earlier than the date the information contained herein is recorded
in the Register pursuant to Section 12.06(b) of the Credit Agreement).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
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of principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to the Effective Date or accrue subsequent to the
Effective Date.
6. From and after the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement except as provided in Section 12.07 of the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed on Schedule 1 hereto by their respective duly
authorized officers.
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
Schedule 1 to
Assignment and Acceptance
relating to the Second Amended and Restated Credit Agreement,
dated as of December 5, 1996,
among Panavision International, L.P. as Borrower,
the Lenders named therein and The Chase Manhattan Bank,
as administrative agent for the Lenders
(in such capacity, the "Administrative Agent")
Name of Assignor: _______________
Name of Assignee: _______________
Effective Date of
Assignment: _______________
Principal Amount Percentage of
Assigned Facility Assigned Aggregate Commitment
- ----------------- ---------------- --------------------
[ASSIGNOR] [ASSIGNEE]
By_______________________ By________________________
Title: Title:
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
- 2 -
[Consented to and] Accepted:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_________________________
Title:
[Consented to:
PANAVISION INTERNATIONAL, L.P. (3)
By Panavision Inc.,
its General Partner
By_________________________
Title:]
[Consented to:
THE CHASE MANHATTAN BANK, (4)
as Issuing Lender
By_________________________
Title:]
___________________________________
3 If required by 12.06(b) of the Credit Agreement.
4 If required by 12.06(b) of the Credit Agreement.
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
Exhibit 10.8
PANAVISION INC.
FIRST AMENDED AND RESTATED STOCK OPTION PLAN
ARTICLE I
Purpose
This First Amended and Restated Stock Option Plan (the "Plan") is
intended as an incentive and to encourage stock ownership by officers and
certain other key employees of Panavision Inc. (the "Company") in order to
increase their proprietary interest in the Company's success and to encourage
them to remain in the employ of the Company.
The term "Company," when used in the Plan with reference to
eligibility and employment, shall include the Company, its subsidiaries, and
Panavision International L.P. ("PILP"). The word "subsidiary," when used in the
Plan, shall mean any subsidiary of the Company within the meaning of Section
424(f) of the Internal Revenue Code of 1986, as amended (the "Code").
It is intended that certain options granted under this Plan will
qualify as "incentive stock options" under Section 422 of the Code.
ARTICLE II
Administration
The Plan shall be administered by a Stock Option Committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board")
and shall consist of not less than two members. Subject to the provisions of the
Plan, the Committee shall have sole authority, in its absolute discretion: (a)
to determine which of the eligible employees of the Company shall be granted
options; (b) to authorize the granting of both incentive stock options and
nonqualified options; (c) to determine the times when options shall be granted
and the number of shares to be optioned; (d) to determine the option price of
the shares subject to each option, which price shall be not less than the
minimum specified in ARTICLE V; (e) to determine the time or times when each
option becomes exercisable, the duration of the exercise period and any other
restrictions on the exercise of options issued hereunder; (f) to prescribe the
form or forms of the option agreements under the Plan (which forms shall be
consistent with the terms of the Plan but need not be identical); (g) to adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the
<PAGE>
administration of the Plan; and (h) to construe and interpret the Plan, the
rules and regulations and the option agreements under the Plan and to make all
other determinations deemed necessary or advisable for the administration of the
Plan. All decisions, determinations and interpretations of the Committee shall
be final and binding on all optionees.
ARTICLE III
Stock
The stock to be purchased under the Plan shall be shares of
authorized but unissued common stock of the Company, par value $0.01 per share,
or previously issued shares of common stock reacquired by the Company (the
"Stock"). Under the Plan, the total number of shares of Stock which may be
purchased pursuant to options granted hereunder shall not exceed 3,000,000, and
the maximum number of shares for which options may be granted to any single
optionee during any calendar year shall not exceed 500,000. Such numbers of
shares shall be adjusted in accordance with the provisions of ARTICLE X hereof.
The number of shares of Stock available for grant of options under
the Plan shall be decreased by the sum of the number of shares with respect to
which options have been issued and are then outstanding and the number of shares
issued upon exercise of options. In the event that any outstanding option under
the Plan for any reason expires, is terminated or is cancelled prior to the end
of the period during which options may be granted, the shares of Stock called
for by the unexercised portion of such option may again be subject to an option
under the Plan.
ARTICLE IV
Eligibility of Participants
Subject to ARTICLE VII, officers and other key employees of the
Company, its subsidiaries and PILP shall be eligible to receive options under
the Plan, provided that incentive stock options may be granted only to employees
of the Company and its subsidiaries. In addition, options which are not
incentive stock options may be granted to directors, consultants or other key
persons who the Committee determines shall receive options under the Plan.
-2-
<PAGE>
ARTICLE V
Option Exercise Price
Subject to ARTICLE VII, the exercise price of options granted under
the Plan shall be not less than the fair market value of the Stock at the time
the option was granted. The fair market value shall be deemed for all purposes
of the Plan to be the last sale price reported as having occurred on any
exchange on which the Company's Common Stock may be listed and traded on the
date prior to the date the option is granted, or, if there is no such sale on
that date, then on the last preceding date on which such a sale was reported. If
the Company's Common Stock is not listed on any exchange but the Common Stock is
quoted in the National Market System of the National Association of Securities
Dealers Automated Quotation System on a last sale basis then the fair market
value of the Stock shall be deemed to be the average between the high bid price
and low ask price reported on the date prior to the date the option is granted,
or, if there is no such sale on that date, then on the last preceding date on
which a sale was reported. If the Common Stock is not quoted in the National
Market System of the National Association of Securities Dealers Automated
Quotation System on a last sale basis, then the fair market value of the Stock
shall mean the amount determined by the Committee to be the fair market value
based upon a good faith attempt to value the Stock accurately and computed in
accordance with applicable regulations of the Internal Revenue Service.
ARTICLE VI
Exercise and Terms of Options
Subject to this ARTICLE VI, the Committee shall determine the dates
after which options may be exercised, in whole or in part. If an option is
exercisable in installments, installments or portions thereof which are
exercisable and not exercised shall remain exercisable.
Any other provision of the Plan to the contrary notwithstanding, but
subject to ARTICLE VII in the case of incentive stock options, no option shall
be exercised after the date ten years from the date of grant of such option (the
"Termination Date"). Unless otherwise determined by the Committee, the following
provisions shall apply upon an optionee's termination of employment prior to the
Termination Date:
(i) If prior to the Termination Date, an optionee shall cease to be
employed by the Company by reason of a disability, as defined in Section
22(e)(3)
-3-
<PAGE>
of the Code, the option shall remain exercisable until the earlier of the
Termination Date or one year after the date of cessation of employment, to
the extent the option was exercisable at the time of cessation of
employment.
(ii) In the event of the death of an optionee prior to the
Termination Date and while employed by the Company, or while entitled to
exercise an option pursuant to the preceding paragraph or the subsequent
paragraph, the option shall remain exercisable until the earlier of the
Termination Date or one year after the date of death, by the person or
person to whom the optionee's rights under the option pass by will or the
applicable laws of descent and distribution, to the extent the option was
exercisable on the date of death.
(iii) If an optionee voluntarily terminates employment with the
Company for reasons other than death or disability, or if an optionee's
employment with the Company is terminated for Cause, the option shall
remain exercisable until the earlier of the Termination Date or ten days
after the date of such termination, to the extent the option was
exercisable on the date of such termination.
(iv) If the Company terminates an optionee's employment without
Cause, as hereinafter defined, the option shall remain exercisable until
the earlier of the Termination Date or three months after the date of such
termination, to the extent the option was exercisable on the date of such
termination.
For purposes of the Plan, the Company shall have "Cause" to
terminate an optionee's employment if the Company has cause to terminate the
optionee's employment under any existing employment agreement between the
optionee and the Company or, in the absence of an employment agreement between
the optionee and the Company, in accordance with the definition of cause set
forth in the optionee's option agreement.
The Committee may provide, in its discretion, that it shall be a
condition precedent to the exercise of an option that the optionee execute a
written stockholders' agreement in such form as may be designated by the
Committee.
-4-
<PAGE>
ARTICLE VII
Special Provisions Applicable
to Incentive Stock Options Only
To the extent the aggregate fair market value (determined as of the
time the option is granted) of the Stock with respect to which any options
granted hereunder which are intended to be incentive stock options may be
exercisable for the first time by the optionee in any calendar year (under this
Plan or any other stock option plan of the Company or any parent or subsidiary
thereof) exceeds $100,000, such options shall not be considered incentive stock
options.
No incentive stock option may be granted to an individual who, at
the time the option is granted, owns directly, or indirectly within the meaning
of Section 424(d) of the Code, stock possessing more than 10 percent of the
total combined voting power of all classes of stock of the Company or of any
parent or subsidiary thereof, unless such option (i) has an option price of at
least 110 percent of the fair market value of the Stock on the date of the grant
of such option; and (ii) cannot be exercised more than five years after the date
it is granted.
Each optionee who receives an incentive stock option must agree to
notify the Company in writing immediately after the optionee makes a
disqualifying disposition of any Stock acquired pursuant to the exercise of an
incentive stock option. A disqualifying disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the optionee was granted the incentive stock option or (b) one year after
the date the optionee acquired Stock by exercising the incentive stock option.
ARTICLE VIII
Payment for Shares
Payment for shares of Stock purchased under an option granted
hereunder shall be made in full upon exercise of the option, by certified or
bank cashier's check payable to the order of the Company, by delivery of shares
of Stock which have been held by the optionee for at least six months of the
time of exercise, or by any other means specified by the Committee. The Stock
purchased shall thereupon be promptly delivered; provided, however, that the
Company may, in its discretion, require that an optionee pay to the Company, at
the time of exercise, such amount as the Company deems necessary to satisfy its
obligation to withhold Federal, state or local income or other taxes incurred by
reason of the exercise or the transfer of shares thereupon.
-5-
<PAGE>
ARTICLE IX
Non-Transferability of Option Rights
No option shall be transferable except by will or the laws of
descent and distribution. During the lifetime of the optionee, the option shall
be exercisable only by him.
ARTICLE X
Adjustment for Recapitalization, Merger, etc.
The aggregate number of shares of Stock which may be purchased
pursuant to options granted hereunder, the maximum number of shares for which
options may be granted to any single optionee during any calendar year, the
number of shares of Stock covered by each outstanding option and the price per
share thereof in each such option shall be appropriately adjusted for any
increase or decrease in the number of outstanding shares of stock resulting from
a stock split or other subdivision or consolidation of shares of Stock or for
other capital adjustments or payments of stock dividends or distributions or
other increases or decreases in the outstanding shares of Stock without receipt
of consideration by the Company. Any adjustment shall be conclusively determined
by the Committee.
In the event of any change in the outstanding shares of Stock by
reason of any recapitalization, merger, consolidation, spin-off, combination or
exchange of shares or other corporate change, or any distributions to common
shareholders other than ordinary cash dividends, the Committee shall make such
substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind of shares of Stock or other securities issued or reserved for
issuance pursuant to the Plan, the maximum number of shares for which options
may be granted to any single optionee during any calendar year, and the number
or kind of shares of Stock or other securities covered by outstanding options,
and the option price thereof. In instances where another corporation or other
business entity is being acquired by the Company, and the Company has assumed
outstanding employee option grants and/or the obligation to make future or
potential grants under a prior existing plan of the acquired entity, similar
adjustments are permitted at the discretion of the Committee. The Committee
shall notify optionees of any intended sale of all or substantially all of the
Company's assets within a reasonable time prior to such sale.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may
-6-
<PAGE>
provide for the elimination of any fractional share which might otherwise become
subject to an option.
ARTICLE XI
No Obligation to Exercise Option
Granting of an option shall impose no obligation on the recipient to
exercise such option.
ARTICLE XII
Use of Proceeds
The proceeds received from the sale of Stock pursuant to the Plan
shall be used for general corporate purposes.
ARTICLE XIII
Rights as a Stockholder
An optionee shall have no rights as a stockholder with respect to
any share covered by his or her option until such optionee shall have become the
holder of record of such share, and shall not be entitled to any dividends or
distributions or other rights in respect of such share for which the record date
is prior to the date on which he or she shall have become the holder of record
thereof.
Notwithstanding anything herein to the contrary, the Committee, in
its sole discretion, may restrict the transferability of all or any number of
shares issued under the Plan upon the exercise of an option by legending the
stock certificate as it deems appropriate.
ARTICLE XIV
Employment Rights
Nothing in the Plan or in any option granted hereunder shall confer
on any optionee any right to continue in the employ of the Company, or to
interfere in any way with the right of the Company to terminate the optionee's
employment at any time.
-7-
<PAGE>
ARTICLE XV
Compliance with the Law
The Company is relieved from any liability for the nonissuance or
non-transfer, or any delay in issuance or transfer, of any shares of Stock
subject to options under the Plan which results from the inability of the
Company to obtain, or from any delay in obtaining, from any regulatory body
having jurisdiction, all requisite authority to issue or transfer shares of
Stock of the Company if counsel for the Company deems such authority necessary
for the lawful issuance or transfer of any such shares. Appropriate legends may
be placed on the stock certificates evidencing shares issued upon exercise of
options to reflect such transfer restrictions.
Each option granted under the Plan is subject to the requirement
that if at any time the Committee determines, in its discretion, that the
listing, registration or qualification of shares of Stock issuable upon exercise
of options is required by any securities exchange or under any state or Federal
law, or that the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the grant of
options or the issuance of shares of Stock, no options or shares of Stock shall
be issued, in whole or in part, unless such listing, registration,
qualification, consent or approval has been effected or obtained free of any
conditions or with such conditions as are acceptable to the Committee.
ARTICLE XVI
Cancellation of Options
The Committee, in its discretion, may, with the consent of an
optionee, cancel any outstanding option held by such optionee hereunder.
ARTICLE XVII
Effective Date and Expiration Date of Plan
The Plan, as amended and restated, is effective as of March 19,
1997, the date of adoption of the Plan by the Company's Board of Directors,
subject to approval by the stockholders of the Company in a manner which
complies with both Section 162(m)(4)(C)(ii) and Section 422(b)(1) of the Code
and the Treasury Regulations thereunder. The expiration date of the Plan, after
which no option may be granted hereunder, shall be March 19, 2007.
-8-
<PAGE>
ARTICLE XVIII
Amendment or Discontinuance of Plan
The Board may, without the consent of the Company's stockholders or
optionees under the Plan, at any time terminate the Plan entirely and at any
time or from time to time amend or modify the Plan, provided that no such action
shall adversely affect any option theretofore granted hereunder without the
optionee's consent, and provided further that no such action by the Board,
without approval of the stockholders, may increase the total number of shares of
Stock which may be purchased pursuant to options granted under the Plan, except
as contemplated in ARTICLE X.
ARTICLE XIX
Repurchase of Options
In granting options hereunder, the Committee may in its discretion,
and on terms it considers appropriate, include in an option agreement provisions
requiring an optionee, or the executors or administrators of an optionee's
estate, to sell back to the Company such options in the event such optionee's
employment with the Company is terminated.
ARTICLE XX
Miscellaneous
(a) Options shall be evidenced by option agreements (which need not
be identical) in such forms as the Committee may from time to time approve. Such
agreements shall conform to the terms and conditions of the Plan and may provide
that the grant of any option under the Plan and Stock acquired pursuant to the
Plan shall also be subject to such other conditions (whether or not applicable
to the option or Stock received by any other optionee) as the Committee
determines appropriate, including, without limitation, provisions to assist the
optionee in financing the purchase of Stock through the exercise of options,
provisions for the forfeiture of, or restrictions on resale or other disposition
of, shares under the Plan, provisions giving the Company the right to repurchase
shares acquired under the Plan in the event the participant elects to dispose of
such shares, and provisions to comply with Federal and state securities laws and
Federal and state income tax withholding requirements.
(b) If the Committee shall find that any person to whom any amount
is payable under the Plan is unable to
-9-
<PAGE>
care for his affairs because of illness or accident, or is a minor, or has died,
then any payment due to such person or his estate (unless a prior claim therefor
has been made by a duly appointed legal representative) may, if the Committee so
directs the Company, be paid to his spouse, child, or other relative, an
institution maintaining or having custody of such person, or any other person
deemed by the Committee to be a proper recipient on behalf of such person
otherwise entitled to payment. Any such payment shall be a complete discharge of
the liability of the Committee and the Company therefor.
(c) No member of the Committee shall be personally liable by reason
of any contract or other instrument executed by such member or on his behalf in
his capacity as a member of the Committee nor for any mistake of judgment made
in good faith, and the Company shall indemnify and hold harmless each member of
the Committee and each other employee, officer or director of the Company to
whom any duty or power relating to the administration or interpretation of the
Plan may be allocated or delegated, against any cost or expense (including
counsel fees) or liability (including any sum paid in settlement of a claim)
arising out of any act or omission to act in connection with the Plan unless
arising out of such person's own fraud or bad faith; provided, however, that
approval of the Company's Board of Directors shall be required for the payment
of any amount in settlement of a claim against any such person. The foregoing
right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Certificate of Incorporation or By-Laws, as a matter of law, or otherwise, or
any power that the Company may have to indemnify them or hold them harmless.
(d) The Plan shall be governed by and construed in accordance with
the internal laws of the State of Delaware without reference to the principles
of conflicts of law thereof.
(e) No provision of the Plan shall require the Company, for the
purpose of satisfying any obligations under the Plan, to purchase assets or
place any assets in a trust or other entity to which contributions are made or
otherwise to segregate any assets, nor shall the Company maintain separate bank
accounts, books, records or other evidence of the existence of a segregated or
separately maintained or administered fund for such purposes. Optionees shall
have no rights under the Plan other than as unsecured general creditors of the
Company, except that insofar as they may have become entitled to payment of
additional compensation by performance of services, they shall have the same
rights as other employees under general law.
-10-
<PAGE>
(f) Each member of the Committee and each member of the Company's
Board of Directors shall be fully justified in relying, in acting or failing to
act, and shall not be liable for having so relied, acted or failed to act in
good faith, upon any report made by the independent public accountant of the
Company and upon any other information furnished in connection with the Plan by
any person or persons other than such member.
(g) Except as otherwise specifically provided in the relevant plan
document, no payment under the Plan shall be taken into account in determining
any benefits under any pension, retirement, profit-sharing, group insurance or
other benefit plan of the Company.
(h) The expenses of administering the Plan shall be borne by the
Company.
(i) Masculine pronouns and other words of masculine gender shall
refer to both men and women.
* * *
As adopted by the Board of Directors of
Panavision Inc. as of June 12, 1996
Amended and restated as of
March 19, 1997
-11-
<PAGE>
EXHIBIT 11
PANAVISION INC.
COMPUTATION OF EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Weighted average shares outstanding.............................................. 14,130 13,706 13,706
Shares and options considered outstanding for all periods under SAB 55, using the
treasury stock method.......................................................... 1,603 1,571 1,571
--------- --------- ---------
Total...................................................................... 15,733 15,277 15,277
--------- --------- ---------
--------- --------- ---------
Net income....................................................................... $ 13,271 $ 5,563 $ 7,078
--------- --------- ---------
--------- --------- ---------
Net income per common share...................................................... $ .84 $ .36 $ .46
--------- --------- ---------
--------- --------- ---------
</TABLE>
- ------------------------
Note: Primary and fully diluted net income per share are the same.
<PAGE>
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-19971) pertaining to the Panavision Inc. Stock Option Plan, of
our report dated February 26, 1997 with respect to the consolidated financial
statements and schedule of Panavision Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1996.
ERNST & YOUNG LLP
Los Angeles, California
March 25, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 10,629
<SECURITIES> 0
<RECEIVABLES> 22,624
<ALLOWANCES> 2,500
<INVENTORY> 5,182
<CURRENT-ASSETS> 38,531
<PP&E> 243,723
<DEPRECIATION> 113,282
<TOTAL-ASSETS> 176,746
<CURRENT-LIABILITIES> 27,214
<BONDS> 0
0
0
<COMMON> 181
<OTHER-SE> 92,837
<TOTAL-LIABILITY-AND-EQUITY> 176,746
<SALES> 19,936
<TOTAL-REVENUES> 124,638
<CGS> 12,350
<TOTAL-COSTS> 59,473
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 404
<INTEREST-EXPENSE> 8,182
<INCOME-PRETAX> 16,807
<INCOME-TAX> 3,536
<INCOME-CONTINUING> 13,271
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 13,271
<EPS-PRIMARY> .84
<EPS-DILUTED> .84
</TABLE>
