PX ESCROW CORP.
9 5/8% Senior Subordinated Discount Notes Due 2006
To Be Assumed By
PANAVISION INC.
REGISTRATION AGREEMENT
February 6, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇ & CO. INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
PX Escrow Corp., a Delaware corporation (the "Issuer"), proposes to issue
and sell to Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇▇ & Co. Inc. (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement of even
date herewith (the "Purchase Agreement"), its 9 5/8% Senior Subordinated
Discount Notes Due 2006 (the "Notes"). In connection with the consummation of
the Panavision Recapitalization described in the Offering Circular dated
February 6, 1998 and hereinafter referred to as the "Offering Circular"),
Panavision Inc., a Delaware corporation ("Panavision"), will assume the
obligations of the Issuer under the Notes and the related Indenture. Capitalized
terms used but not specifically defined herein are defined in the Purchase
Agreement. References to the Obligor refer to (x) prior to the Panavision
Assumption (as defined in the Offering Circular), and in the event that either
of the Panavision Recapitalization or the Panavision Assumption is not
consummated, the Issuer, and (y) after the Panavision Assumption, Panavision. As
an inducement to the Initial Purchasers to enter into the Purchase Agreement and
in satisfaction of a condition to your obligations thereunder, the Obligor
agrees with you, for the benefit of the holders of the Notes (including the
Initial Purchasers) (the "Holders"), as follows:
1. Registered Exchange Offer. The Obligor shall, at its cost, prepare and,
not later than 45 days after the Closing Date (defined as the date of the
Panavision
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Assumption) (or, if the 45th day is not a business day, the first business day
thereafter), shall file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933 (the "1933
Act"), with respect to a proposed offer (the "Registered Exchange Offer") to the
Holders to issue and deliver to such Holders, in exchange for Notes, a like
principal amount at maturity of debt securities (the "Exchange Notes") of the
Obligor with terms substantially identical in all material respects to the Notes
(except that the Exchange Notes will not contain terms with respect to transfer
restrictions), shall use its best efforts to cause the Exchange Offer
Registration Statement to become effective under the 1933 Act by 150 days after
the Closing Date (or if the 150th day is not a business day, the first business
day thereafter) and shall use its best efforts to keep the Exchange Offer
Registration Statement effective under the 1933 Act until the close of business
on the 180th day following the expiration of the Registered Exchange Offer (such
period being called the "Exchange Offer Registration Period") for use by
Exchanging Dealers (as defined below) as contemplated in Section 3(g) below. The
Obligor shall be deemed not to have used its best efforts to keep the Exchange
Offer Registration Statement effective during the Exchange Offer Registration
Period if the Obligor voluntarily takes any action that would result in
Exchanging Dealers not being able to use such Registration Statement as
contemplated in such Section 3(g), unless (i) such action is required by
applicable law or (ii) such action is taken by the Obligor's in good faith and
for valid business reasons (not including avoidance of the Obligor's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Obligor promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable. The Exchange Notes will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement, the
Obligor shall promptly commence the Registered Exchange Offer. The objective of
such Registered Exchange Offer is to enable each Holder electing to exchange
Notes for Exchange Notes (assuming that such Holder is not an affiliate of
Panavision within the meaning of the 1933 Act, acquires the Exchange Notes in
the ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
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securities laws of a substantial proportion of the several states of the United
States. Notwithstanding the foregoing, the Initial Purchasers and the Obligor
acknowledge that, pursuant to current interpretations by the Commission's staff
of Section 5 of the 1933 Act, and in the absence of an applicable exemption
therefrom, (i) each Holder (including any Initial Purchaser) which is a
broker-dealer electing to exchange Notes, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the cover, in Annex B hereto in
"The Exchange Offer" section, and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Notes or Private Exchange Notes (as defined below) received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) each
Initial Purchaser which elects to sell Exchange Notes acquired in exchange for
Notes constituting any portion of an unsold allotment is required to deliver a
prospectus, containing the information required by Items 507 and/or 508 of
Regulation S-K under the 1933 Act, as applicable, in connection with such a
sale.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Notes constituting any portion of an unsold allotment acquired
by it as part of its initial distribution and such Initial Purchaser has
determined upon advice of its outside counsel that it is not eligible to
participate in the Registered Exchange Offer with respect to such Notes, the
Obligor, simultaneously with the delivery of the Exchange Notes pursuant to the
Registered Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Initial Purchaser, a like principal amount
at maturity of Exchange Notes issued under the Indenture and identical in all
material respects (including the existence of restrictions on transfer under the
1933 Act and the securities laws of the several states of the United States) to
the Notes (the "Private Exchange Notes"; the Notes, the Exchange Notes and the
Private Exchange Notes being hereinafter referred to collectively as the
"Securities"). The Obligor will use reasonable efforts to cause the Private
Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Obligor shall:
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(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Obligor shall:
(a) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancelation all Notes so accepted for
exchange; and
(c) cause the Trustee promptly to authenticate and deliver to each
Holder of the Notes, either Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount at maturity to the Notes of such
Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes will not be subject to
the transfer restrictions applicable to the Notes set forth in the Indenture and
that the Notes, the Exchange Notes and the Private Exchange Notes will
collectively vote and consent together on all matters as one class and that none
of the Notes, the Exchange Notes and the Private Exchange Notes will have the
right to vote or consent as a class separate from one another on any matter.
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Notwithstanding any other provisions hereof, the Obligor shall ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Exchange Offer Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Obligor that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the 1933 Act, (iii)
such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of
Panavision or if it is an affiliate, such Holder acknowledges that it must
comply with the registration and prospectus delivery requirements of the 1933
Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that
it is not engaged in, and does not intend to engage in, a distribution of the
Exchange Notes and (v) if such Holder is a broker-dealer, that it will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
2. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Obligor determines that
it is not permitted to effect the Registered Exchange Offer as contemplated by
Section 1 hereof, (ii) for any other reason the Registered Exchange Offer is not
consummated by the 180th day after the Closing Date (or, if such day is not a
business day, the first business day thereafter), (iii) any Initial Purchaser so
requests with respect to Notes (or
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Private Exchange Notes) held by it following consummation of the Registered
Exchange Offer, (iv) any Holder (other than an Initial Purchaser) is not
eligible to participate in the Registered Exchange Offer or, in the case of any
Holder (other than an Exchanging Dealer) or Initial Purchaser that participates
in the Registered Exchange Offer, such Holder or Initial Purchaser does not
receive freely tradeable Exchange Notes in exchange for the exchanged Notes (in
the case of an Initial Purchaser constituting any portion of an unsold
allotment) (it being understood that the requirement that an Initial Purchaser
deliver a prospectus in connection with sales of the Exchange Notes acquired in
the Registered Exchange Offer in exchange for the Notes acquired as a result of
market-making activities or other trading activities, shall not result in such
Exchange Notes not being "freely tradeable" for purposes of this Section 2) or
(v) if the Obligor so elects, the following provisions shall apply:
(a) The Obligor shall, at its cost, as promptly as practicable file with
the Commission and thereafter shall use its best efforts to cause to be declared
effective a shelf registration statement on an appropriate form under the 1933
Act relating to the offer and sale of the Notes by the Holders or the Exchange
Notes or the Private Exchange Notes by the Initial Purchasers, as applicable,
from time to time in accordance with the methods of distribution elected by such
Holders or the Initial Purchasers, as applicable, and set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Obligor shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming part
thereof to be usable by Holders or the Initial Purchasers, as applicable, for a
period of two years from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate when all
the Securities covered by the Shelf Registration Statement have been sold
pursuant to the Registration Statement or when, in the opinion of outside
counsel to the Issuer, which is reasonably satisfactory in form and substance to
counsel for the Initial Purchasers, all such Securities may be sold without
registration under the 1933 Act and unlegended certificates representing the
Securities may be given to the holders thereof (in any such case, such period
being called the "Shelf Registration Period"). The
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Obligor shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if the Obligor
voluntarily takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during that period,
unless (i) such action is required by applicable law, or (ii) such action is
taken by the Obligor in good faith and for valid business reasons (not including
avoidance of the Obligor's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Obligor promptly thereafter comply with
the requirements of Section 3(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Obligor shall ensure
that (i) any Shelf Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any
Shelf Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Obligor shall (i) furnish to each Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its best efforts to reflect in each such document, when so
filed with the Commission, such comments as the Initial Purchasers reasonably
may propose; (ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in "The Exchange Offer" section, and in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement, and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange
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Offer; (iii) if requested by an Initial Purchaser, include the information
required by Items 507 and/or 508 of Regulation S-K under the 1933 Act, as
applicable, in the prospectus forming a part of the Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders.
(b) (1) The Obligor shall advise you (which notice pursuant to clause (ii)
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made, if applicable) and, in the case of a
Shelf Registration Statement, the Holders of Securities included therein, and,
in the case of an Exchange Offer Registration Statement, any Exchanging Dealer
which has provided in writing to the Obligor a telephone or facsimile number or
address for notices, and, if requested by you or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information.
(2) The Obligor shall advise you and, in the case of a Shelf Registration
Statement, Holders of Securities included therein, and, in the case of an
Exchange Offer Registration Statement, any Exchanging Dealer which has provided
in writing to the Obligor a telephone or facsimile number or address for
notices, and, if requested by you or any such Holder or Exchanging Dealer,
confirm such advice in writing;
(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Obligor of any notification with respect to
the suspension of the qualification of the Securities included therein for
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sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made).
(c) The Obligor shall make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(d) The Obligor shall furnish to each Holder of Securities included within
the coverage of any Shelf Registration Statement (including any Exchanging
Dealer which so requests in writing or any Initial Purchaser), without charge,
at least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(e) The Obligor shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and the
Obligor consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the prospectus or any amendment
or supplement thereto.
(f) The Obligor shall furnish to each Exchanging Dealer or Initial
Purchaser, as applicable, which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Exchanging
Dealer or Initial
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Purchaser, as applicable, so requests in writing, all exhibits (including those
incorporated by reference).
(g) The Obligor shall, during the Exchange Offer Registration Period,
promptly deliver to each broker-dealer that is the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "1934
Act")) of Exchange Notes received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer") and such other persons as may
be required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such person
may reasonably request for delivery by such person in connection with a sale of
Exchange Notes received by it pursuant to the Registered Exchange Offer; and the
Obligor consents to the use of the prospectus or any amendment or supplement
thereto by any such Participating Broker-Dealer or other person as aforesaid.
(h) Prior to any public offering of Securities pursuant to any Shelf
Registration Statement, the Obligor shall register or qualify or cooperate with
the Holders of Securities included therein and their respective counsel in
connection with the registration or qualification of such Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Shelf Registration Statement; provided, however, that
the Obligor shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(i) The Obligor shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request prior to sales of Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph (b)(2)(iii)
above, the Obligor shall promptly prepare a post-effective amendment to the
Registration
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Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities
included therein, the prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Obligor notifies the Initial Purchasers, the
Holders and any known Exchanging Dealer in accordance with paragraphs (1)(ii) or
(2)(i) through (iii) of Section 3(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the Initial
Purchasers, the Holders and any such Participating Broker-Dealers shall suspend
use of such prospectus.
(k) Not later than the effective date of the applicable Registration
Statement, the Obligor shall provide a CUSIP number for the Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and provide the
applicable trustee with certificates for the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Obligor shall comply with all applicable rules and regulations of
the Commission and shall make generally available to its security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of
the 1933 Act.
(m) The Obligor shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Obligor shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Obligor may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Obligor such information
regarding the holder and the distribution of such Securities as the Obligor may
from time to time reasonably require for inclusion in such Registration
Statement, and the Obligor may exclude from such Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
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(o) The Obligor shall enter into such customary agreements (including if
requested an underwriting agreement in customary form) and take all such other
action, if any, as any Holder shall reasonably request in order to facilitate
the disposition of the Securities pursuant to any Shelf Registration Statement.
(p) In the case of any Shelf Registration Statement, the Obligor shall (i)
make reasonably available for inspection by the Holders, and any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Obligor and (ii) cause the Obligor's officers,
directors and employees to supply all relevant information reasonably requested
by the Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement.
(q) In the case of any Exchange Offer Registration Statement, the Obligor
shall (i) make reasonably available for inspection by the Initial Purchasers,
but in each case only in such firm's capacity as an Exchanging Dealer and with
the express understanding that each such firm shall be acting solely for itself
and not on behalf of any other party, including any other Exchanging Dealer, all
relevant financial and other records, pertinent corporate documents and
properties of the Obligor and (ii) cause the Obligor's officers, directors and
employees to supply all information reasonably requested by any of them.
(r) In the case of any Shelf Registration Statement, the Obligor, if
requested by any Holder, shall cause (x) its counsel to deliver an opinion
relating to the Securities included within the coverage of such Shelf
Registration Statement in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested by any underwriters
of the Securities and (z) its independent public accountants to provide to the
selling Holders and any underwriter therefor a comfort letter in customary form.
(s) In the case of any Exchange Offer Registration Statement, the Obligor,
if requested by the Initial Purchasers, but in each case only in such firm's
capacity as an Exchanging Dealer and with the express understanding that each
such firm shall be acting solely for
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itself and not on behalf of any other party, including any other Exchanging
Dealer, in connection with any prospectus delivery as contemplated in paragraph
(g) above, shall use its best efforts to cause, on and as of the effective date
of the Exchange Offer Registration Statement, (x) its counsel to deliver an
opinion relating to the Exchange Offer Registration Statement and the Exchange
Notes in customary form, (y) its officers to execute and deliver all customary
documents and certificates requested and (z) its independent public accountants
to provide a comfort letter in customary form, subject to receipt of appropriate
documentation (including the delivery of a customary representation letter), as
contemplated by Statement on Auditing Standards No. 72.
(t) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Obligor (or to such
other person as directed by the Obligor) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Obligor shall ▇▇▇▇, or
caused to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall the Notes be marked as paid or otherwise
satisfied.
(u) The Obligor shall pay interest on the Notes for failure to comply with
its obligations under Section 1 or Section 2, as applicable, in accordance with
the terms of the Securities.
4. Registration Expenses. The Obligor shall bear all expenses incurred in
connection with the performance of its obligations under Sections 1, 2 and 3
hereof and, in the event of any Shelf Registration Statement, shall reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Holders of a majority in principal amount at maturity of the
Securities to be registered thereunder to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, shall reimburse the Initial Purchasers, as applicable, for the
reasonable fees and disbursements of counsel in connection therewith.
5. Indemnification. (a) In the event of a Shelf Registration or in
connection with any prospectus delivery pursuant to a Registered Exchange Offer
by an Exchanging Dealer as contemplated in Section 3(g) above, the Obligor shall
indemnify and hold harmless each Holder and each
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person, if any, who controls such Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus, in
the light of the circumstances under which they were made) not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental or regulatory agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 5(c) hereof, the fees and disbursements of counsel
chosen by the indemnified party reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental or regulatory agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission);
provided, however, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Obligor by the
indemnified party expressly for use in such Registration Statement and (ii) such
indemnity with respect to any preliminary prospectus shall not enure to the
benefit of any Holder (or any person controlling such Holder) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the final prospectus (or the final prospectus as supplemented) at or prior to
the confirmation of the sale of such Securities to
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such person and (A) the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the final prospectus
(or the final prospectus as supplemented) and (B) such Holder had previously
been furnished by or on behalf of the Obligor (prior to the date of mailing by
such Holder of the applicable confirmation) with a sufficient number of copies
of the final prospectus as so amended or supplemented.
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Obligor, its directors and officers and each
person, if any, who controls the Obligor within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 5(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment or supplement thereto) in reliance on and in conformity with
written information furnished to the Obligor by such Holder expressly for use in
the Registration Statement (or in such amendment or supplement); provided,
however, that no such Holder shall be liable for any indemnity claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement, except
to the extent actually prejudiced thereby. If any such claim or action shall be
brought against an indemnified party, the indemnified party shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof (other than reasonable costs of
16
investigation); provided, however, if the defendants in any such action include
both an indemnified party and an indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties under this
Section 5 shall have the right to employ not more than one counsel to represent
them and, in that event, the fees and expenses of not more than one such
separate counsel shall be paid by the indemnifying party, as such expenses are
incurred. No indemnifying party shall be liable for any settlement effected
without its written consent. An indemnifying party shall not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) To provide for just and equitable contribution in circumstances in
which the indemnity provided for in Sections 5(a) through (c) hereof is for any
reason held to be unenforceable by the indemnified parties although applicable
in accordance with its terms, the Obligor and the applicable Holder or Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity incurred by the Obligor
and such Holder or Holders, as incurred, in such proportions that the Obligor is
responsible for that portion represented by the percentage that the aggregate
consideration received by the Obligor from the sale by it of the Notes bears to
the aggregate accreted value of Securities sold by such Holder and such Holder
is responsible for the balance; provided, however, that no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) by a court of competent jurisdiction shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 5, each person, if any, who controls a Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Holder and each director and officer of the
Obligor and
17
each person, if any, who controls the Obligor within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Obligor.
(e) The agreements contained in this Section 5 shall survive the sale of
the securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancelation of this Agreement
or any investigation made by or on behalf of any indemnified party.
7. Underwritten Registrations. (a) "Transfer Restricted Securities" means
each Security until (i) in the case of a Note, the date on which such Transfer
Restricted Security has been exchanged by a person other than a broker-dealer
for a freely transferrable Exchange Note in the Registered Exchange Offer, (ii)
in the case of an Exchange Note, following the exchange by a broker-dealer in
the Registered Exchange Offer of a Transfer Restricted Security for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Transfer Restricted Security has been effectively registered
under the 1933 Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Transfer Restricted Note is distributed
to the public pursuant to Rule 144 under the 1933 Act or is saleable pursuant to
Rule 144(k) under the ▇▇▇▇ ▇▇▇.
(b) If any of the Transfer Restricted Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
("Managing Underwriters") will be selected by the Holders of a majority in
aggregate principal amount of such Transfer Restricted Securities to be included
in such offering.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
18
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Release of Issuer. Upon the consummation of the Panavision Assumption,
the Issuer shall be discharged from all obligations and covenants under this
Agreement.
9. Miscellaneous. (a) Amendment and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Obligor
has obtained the written consent of Holders of a majority in aggregate principal
amount at maturity of the Securities.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Obligor in accordance with the provisions of this Section 9(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to the Initial Purchasers;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement with copies to the parties
specified therein;
(iii) if to the Issuer, initially at its address set forth in the
Purchase Agreement, with copies to the parties specified therein; and
(iv) if to Panavision, to the attention of the Secretary at ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers, the Issuer or Panavision by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
19
(c) Successors and Assigns. Subject to Section 8, this Agreement shall be
binding upon the Obligor and its successors and assigns.
(d) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Specified times of day refer to New York City time.
(g) Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(h) Securities Held by the Obligor. Whenever the consent or approval of
Holders of a specified percentage of principal amount at maturity of Securities
is required hereunder, Securities held by the Obligor or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(i) No Inconsistent Agreements. Neither the Issuer nor Panavision have, as
of the date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(j) Copies of Agreement. The Obligor shall provide a copy of this Agreement
to prospective purchasers
20
of Notes identified to them by the Initial Purchasers upon request.
21
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and you.
Very truly yours,
PX ESCROW CORP.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CONFIRMED AND ACCEPTED
as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇ & CO. INC.
by Credit Suisse First Boston Corporation
by
----------------------------
Name:
Title:
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and you.
Very truly yours,
PX ESCROW CORP.
by
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇ & CO. INC.
by Credit Suisse First Boston Corporation
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: DIRECTOR
ANNEX A TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the 1933 Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for the Notes where such Notes were acquired
by such broker-dealer as a result of market-making activities or other trading
activities. The Obligor has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
A-1
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account in
exchange for the Notes, where such Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution".
B-1
ANNEX C TO
REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market making activities or other trading activities. The Obligor has agreed
that for a period of 180 days after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until , 199 , all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus. 1/
The Obligor will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the 1933 Act and any profit on any such
resale of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the 1933 Act. The
Letter of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the 1933 Act.
----------
1/ The legend required by Item 502(e) of Regulation S-K must appear on the
back page of the Exchange Offer Prospectus.
C-1
For a period of 180 days after the Expiration Date, the Obligor will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Obligor has agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
1933 Act.
C-2
ANNEX D TO
REGISTRATION AGREEMENT
Rider A
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: _________________________________________________________________
Address: _________________________________________________________________
_________________________________________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes, it represents that the Notes to be
exchanged for Exchange Notes were acquired by it as a result of market-making or
other trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Notes; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the 1933 Act.
D-1
