AMENDMENTNO. 1 TO THE CREDIT AGREEMENT Dated asof March 27, 2009

 

 

 

Dated as of March 31, 2009

 

Among

 

and

 

 

and

 

 

 

and

 

 

 

and

 

 

 

and

 

 

 

and

 

as Co-Lead Arranger and Co-Bookrunner

 

 

ARTICLE I

 

 

DEFINITIONS AND ACCOUNTING TERMS

 

SECTION 1.01.

Certain Defined Terms                                                                                                                             5

 

SECTION 1.02.

Computation of Time Periods                                                                                                               27

 

SECTION 1.03.

Accounting Terms                                                                                                                                 28

 

SECTION 1.04.

Reserves                                                                                                                                               60;   28

 

ARTICLE II

 

 

AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT

 

SECTION 2.01.

The Advances and Letters of Credit                                                                                                   28

 

SECTION 2.02.

Making the Advances                                                                                                                           28

 

SECTION 2.03.

Issuance of and Drawings and Reimbursement Under Letters of Credit                                      29

 

SECTION 2.04.

Fees                                                                                                                                               & #160;          31

 

SECTION 2.05.

Termination or Reduction of the Commitments                                                                                 31

 

SECTION 2.06.

Repayment of Advances                                                                                                                      32

 

SECTION 2.07.

Interest on Advances                                                                                                                           32

 

SECTION 2.08.

Interest Rate Determination                                                                                                                 33

 

SECTION 2.09.

Optional Conversion of Advances                                                                                                     34

 

SECTION 2.10.

Prepayments of Advances                                                                                                                   34

 

SECTION 2.11.

Increased Costs                                                                                                                                     35

 

SECTION 2.12.

Illegality                                                                                                                                                   36

 

SECTION 2.13.

Payments and Computations                                                                                                               36

 

SECTION 2.14.

Taxes                                                                                                                                                        37

 

SECTION 2.15.

Sharing of Payments, Etc.                                                                                                                     39

 

SECTION 2.16.

Evidence of Debt                                                                                                                                   39

 

SECTION 2.17.

Use of Proceeds                                                                                                                                     40

 

SECTION 2.18.

Cash Management                                                                                                                                 40

 

SECTION 2.19.

Defaulting Lenders                                                                                                                                41

 

SECTION 2.20.

Replacement of Certain Lenders                                                                                                         43

 

SECTION 2.21.

Increase in the Aggregate Commitments                                                                                          44

 

 

SECTION 3.01.

Conditions Precedent to Effectiveness of Section 2.01 under the Existing Credit Agreement                        45

 

SECTION 3.02.

Conditions Precedent to Each Borrowing and Issuance                                                                                        48

 

SECTION 3.03.

Additional Conditions to Issuances                                                                                                                          48

 

SECTION 3.04.

Determinations Under Enabling Amendment                                                                                                           49

 

ARTICLE IV

 

 

REPRESENTATIONS AND WARRANTIES

 

SECTION 4.01.

Representations and Warranties of the Company                                                                                                  49

 

ARTICLE V

 

 

COVENANTS OF THE COMPANY

 

SECTION 5.01.

Affirmative Covenants                                                                                                                                                51

 

SECTION 5.02.

Negative Covenants                                                                                                                                                    57

 

SECTION 5.03.

Financial Covenant                                                                                                                                                      62

 

ARTICLE VI

 

 

EVENTS OF DEFAULT

 

SECTION 6.01.

Events of Default                                                                                                                                                         62

 

SECTION 6.02.

Actions in Respect of the Letters of Credit upon Default                                                                                     64

 

ARTICLE VII

 

 

GUARANTY

 

SECTION 7.01.

Guaranty; Limitation of Liability                                                                                                                                 65

 

SECTION 7.02.

Guaranty Absolute                                                                                                                                                       66

 

SECTION 7.03.

Waivers and Acknowledgments                                                                                                                                67

 

SECTION 7.04.

Subrogation                                                                                                                                                                    67

 

SECTION 7.05.

Guaranty Supplements                                                                                                                                                 68

 

SECTION 7.06.

Subordination                                                                                                                                              0;                  68

 

SECTION 7.07.

Continuing Guaranty; Assignments                                                                                                                          69

 

ARTICLE VIII

 

 

THE AGENT

 

SECTION 8.01.

Authorization and Action                                                                                                                                           69

 

SECTION 8.02.

Agent Individually                                                                                                                                                       69

 

SECTION 8.03.

Duties of Agent; Exculpatory Provisions                                                                                                                70

 

SECTION 8.04.

Reliance by Agent                                                                                                                                                       71

 

SECTION 8.05.

Indemnification                                                                                                                                             &# 160;               71

 

SECTION 8.06.

Delegation of Duties                                                                                                                                                    71

 

SECTION 8.07.

Resignation of Agent                                                                                                                                                  72

 

SECTION 8.08.

Non-Reliance on Agent and Other Lenders                                                                                                             72

 

SECTION 8.09.

No Other Duties, etc.                                                                                                                                                    73

 

ARTICLE IX

 

 

 

MISCELLANEOUS

 

SECTION 9.01.

Amendments, Waivers                                                                                                                                                 73

 

SECTION 9.02.

Notices, Etc.                                                                                                                                                                   74

 

SECTION 9.03.

No Waiver; Remedies                                                                                                                                                   74

 

SECTION 9.04.

Costs and Expenses                                                                                                                                                      74

 

SECTION 9.05.

Right of Set-off                                                                                                                                                               76

 

SECTION 9.06.

Binding Effect                                                                                                                                                                 76       & #160;

 

SECTION 9.07.

Assignments and Participations                                                                                                                                 76

 

SECTION 9.08.

Confidentiality                                                                                                                                             &# 160;                  78

 

SECTION 9.09.

Governing Law                                                                                                                                                                79

 

SECTION 9.10.

Execution in Counterparts                                                                                                                                             79

 

SECTION 9.11.

Jurisdiction                                                                                                                                               ;                        79

 

SECTION 9.12.

No Liability of the Issuing Banks                                                                                                                                79

 

SECTION 9.13.

PATRIOT Act Notice                                                                                                                                                    79

 

SECTION 9.14.

Release of Collateral; Termination of Loan Documents                                                                                           80

 

SECTION 9.15.

Judgment                                                                                                                                               60;                           80

 

SECTION 9.16.

Borrowing Base Amendments                                                                                                                                      80

 

SECTION 9.17.

No Fiduciary Duty                                                                                                                                                          80

 

SECTION 9.18.

Waiver of Jury Trial                                                                                                                                                        81

 

Schedule I                    -           Commitments and Applicable Lending Offices

 

Schedule II                   -           Subsidiary Guarantors and Material Subsidiaries

 

Schedule III                  -           Accounts

 

Schedule 1.01(a)           -           Eligible Real Property

 

Schedule 1.01(b)           -           Non-Revolving Obligations

 

Schedule 2.01(b)           -           Existing Letters of Credit

 

Schedule 5.02(a)            -           Existing Liens

 

Schedule 5.02(d)            -           Existing Debt

 

Schedule 5.02(i)             -           Investments

 

 

Exhibit A                         -           Form of Note

 

Exhibit B                          -           Form of Notice of Borrowing

 

Exhibit C                           -           Form of Assignment and Acceptance

 

Exhibit D                           -           Form of Guaranty Supplement

 

Exhibit E                            -           Form of Borrowing Base Certificate

 

Exhibit F                            -           Form of Mortgage

 

 

Dated as of March 31, 2009

 

EASTMAN KODAK COMPANY, a New Jersey corporation (the “Company”), KODAK CANADA INC., corporation incorporated under the laws of the province of Ontario, Canada (“Kodak Canada” and, together with the Company, the “Borrowers” and each, a “Borrower”), the banks, financial institutions and other institutional lenders (the “Lenders”) and issuers of letters of credit (“Initial Issuing Banks”) listed on Schedule I hereto, CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA SECURITIES LLC, as co-lead arrangers and co-bookrunners, (the “Arrangers”), BANK OF AMERICA, N.A., as syndication agent and CITICORP USA, INC. (“CUSA”), as agent (the “Agent”) for the Lenders (as hereinafter defined), agree as follows:

 

ARTICLE I           

 

 

 

DEFINITIONS AND ACCOUNTING TERMS

 

SECTION 1.01.  Certain Defined Terms.  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

“Account Debtor” means a Person obligated on an Account.

 

“Account” has the meaning specified in the UCC.

 

“ACH” means automated clearinghouse transfers.

 

“Activities” has the meaning specified in Section 8.02(b).

 

“Adjustment Date” has the meaning specified in the definition of “Applicable Margin”.

 

“Advance” means an advance by a Lender to the Company as part of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance.

 

“Affected Lender” has the meaning specified in Section 2.20.

 

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or executive officer of such Person.  For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.

 

“Agent’s Account” means the account of the Agent maintained by the Agent at Citibank at its office at Two Penns Way, New Castle, Delaware, Account No. 36852248, Attention:  Bank Loan Syndications.

 

“Agent’s Group” has the meaning specified in Section 8.02(b).

 

“Agent Sweep Account” has the meaning specified in Section 2.18(b).

 

“Amendment Effective Date” means the date upon which the conditions precedent set forth in Section 4 of the Enabling Amendment are satisfied or waived.

 

“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.

 

“Applicable Margin” means:

 

 

Excess Availability	Applicable Margin for Eurodollar Advances	Applicable Margin for Base Rate Advances
≥ $300,000,000	4.00%	3.00%
≥ $100,000,000 but < $300,000,000	4.25%	3.25%
< $100,000,000	4.50%	3.50%

Any change in the Applicable Margin resulting from changes in average daily Excess Availability shall become effective on the date (the “Adjustment Date”) that is three Business Days after the date on which the last Borrowing Base Certificate of any fiscal quarter is delivered to the Lenders pursuant to Section 5.01(h)(ix) and shall remain in effect until the next change to be effected pursuant to this paragraph.  If any such Borrowing Base Certificate is not delivered within the time period specified in Section 5.01(h)(ix), then, until the date that is three Business Days after the date on which such Borrowing Base Certificate is delivered, the highest rate set forth in each column of the above pricing grid shall apply.

 

In the event that at any time after the end of a fiscal quarter it is discovered that the average daily Excess Availability for such fiscal quarter used for the determination of the Applicable Margin was less than the actual amount of the average daily Excess Availability for such fiscal quarter, the Applicable Margin for such prior fiscal quarter shall be adjusted to the applicable percentage based on such actual average daily Excess Availability for such fiscal quarter and any additional interest for the applicable period payable as a result of such recalculation shall be promptly paid to Lenders.

 

Notwithstanding the foregoing, upon the implementation of the Default Interest rate pursuant to Section 2.07(b) hereof, the Applicable Margin shall be the highest rate set forth in each column of the pricing grid above.

 

 

Public Debt Rating S&P/Moody's	Applicable Margin for Eurodollar Rate Advances	Applicable Margin for Base Rate Advances
Level 1 BBB- and Baa3 above	0.875%	0.000%
Level 2 BB+ and Ba1	1.250%	0.250%
Level 3 BB and Ba2	1.500%	0.500%
Level 4 Lower than Level 3	2.000%	1.000%

“Applicable Percentage” means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below:

 

 

 

 

 

Public Debt Rating S&P/Moody’s	Applicable Percentage
Level 1 BBB- and Baa3 above	0.200%
Level 2 BB+ and Ba1	0.250%
Level 3 BB and Ba2	0.375%
Level 4 Lower than Level 3	0.500%

“Appropriate Lender” has the meaning specified in Section 2.15.

 

 “Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C hereto.

 

“Assuming Lender” has the meaning specified in Section 2.21(d).

 

“Assumption Agreement” has the meaning specified in Section 2.21(d).

 

 “Available Amount” of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).

 

“Bankruptcy Law” means any proceeding of the type referred to in Section 6.01(e) of this Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

 

“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:

 

 

 

“Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).

 

“Borrower Information” has the meaning specified in Section 9.08.

 

“Borrowing” means a borrowing consisting of simultaneous Advances of the same Type made by each of the Lenders pursuant to Section 2.01(a).

 

“Borrowing Base” means, as to each Borrower (a) the sum of the Loan Values in respect of such Borrower less (b) Reserves in respect of such Borrower; provided that the aggregate Borrowing Base for both Borrowers shall not exceed $500,000,000 plus the amount of the Reserves for the Secured Agreements (other than the Loan Documents) at any time.

 

“Borrowing Base Certificate” means a certificate in substantially the form of Exhibit E hereto (with such changes therein as may be required by the Agent to reflect the components of, and Reserves against, the Borrowing Base as provided for hereunder from time to time), executed and certified as accurate and complete by a Responsible Officer of the Company or by the controller of the Company, which shall include detailed calculations as to the Borrowing Base as reasonably requested by the Agent.

 

“Borrowing Base Deficiency” means, at any time and as to each Borrower, the failure of (a) the Borrowing Base of such Borrower at such time to equal or exceed (b) the sum of (i) the aggregate principal amount of the Advances made to such Borrower and outstanding at such time plus (ii) the aggregate Available Amount under all Letters of Credit issued for the account of such Borrower and outstanding at such time.

 

“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.

 

“Canadian Dollars” means the lawful money of Canada.

 

 “Canadian Guaranteed Obligations” has the meaning specified in Section 7.01(a)(ii).

 

“Canadian Loan Party” means Kodak Canada and each Canadian Subsidiary Guarantor.

 

“Canadian Security Agreement” means the Canadian Security Agreement delivered on the Original Effective Date in accordance with Section 3.01(g)(iii), as amended and restated as of the Amendment Effective Date.

 

“Canadian Subsidiary Guarantor” means the wholly-owned (other than directors’ qualifying shares or similar holdings under applicable law) Subsidiaries of Kodak Canada listed on Part B of Schedule II hereto and each other Subsidiary of Kodak Canada that shall be required to execute and deliver a guaranty pursuant to Section 5.01(i).

 

“Cash Collateralize” means, in respect of an obligation, provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Agent (and “Cash Collateralization” has a corresponding meaning).

 

“Cash Control Trigger Event” means either (a) the occurrence and continuance of a Default or (b) the failure of the Loan Parties to maintain Excess Availability of at least $100,000,000 for three (3) consecutive Business Days.  For purposes of this Agreement, the occurrence of a Cash Control Trigger Event shall be deemed to be continuing (a) until such Default has been cured or waived and/or (b) if the Cash Control Trigger Event arises under clause (b) above, until Excess Availability is equal to or greater than $100,000,000 for thirty (30) consecutive days, at which time a Cash Control Trigger Event shall no longer be deemed to be occurring for purposes of this Agreement.

 

“Cash Equivalents” means any of the following, to the extent owned by any Loan Party free and clear of all Liens other than Liens created under the Collateral Documents and having a maturity of not greater than 12 months from the date of issuance thereof:  (a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) certificates of deposit of or time deposits with any commercial bank that is a Lender or a member of the Federal Reserve System that issues (or the parent of which issues) commercial paper rated as described in clause (c), is organized under the laws of the United States or any state thereof and has combined capital and surplus of at least $500,000,000, (c) commercial paper in an aggregate amount of no more than $10,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any state of the United States and rated at least “Prime 1” (or the then equivalent grade) by Moody’s or “A 1” (or the then

 

equivalent grade) by S&P or (d) Investments, classified in accordance with GAAP, as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, or (e) offshore overnight interest bearing deposits in foreign branches of Citibank, any Lender or an Affiliate of a Lender.

 

“CFC” means an entity that is a “controlled foreign corporation” of the Company under Section 957 of the Code or an entity all or substantially all of the assets of which are CFCs, and any entity which would be a “controlled foreign corporation” except for any alternate classification under Treasury Regulation  ###-###-####-3, or any successor provisions to the foregoing.

 

“Citibank” means Citibank, N.A.

 

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“Collateral” means all “Collateral” referred to in the Collateral Documents and all other property that is or is intended to be subject to any Lien in favor of the Agent for the benefit of the Secured Parties pursuant to the terms of the Collateral Documents.

 

“Collateral Documents” means the Security Agreement, the Canadian Security Agreement, the Mortgages and each of the collateral documents, instruments and agreements delivered pursuant to Section 5.01(i) or (j).

 

“Commitment” means a Letter of Credit Commitment or a Revolving Credit Commitment.

 

“Comprehensive Guaranteed Obligations” has the meaning specified in Section 7.01(a)(i).

 

“Concentration Account” means each deposit account, other than an Excluded Account, maintained by a Loan Party in which funds of such Loan Party from one or more Deposit Accounts are concentrated.

 

“Consolidated” refers to the consolidation of accounts in accordance with GAAP.

 

“Consolidated Subsidiary” means any Person whose accounts are consolidated with the accounts of the Company in accordance with GAAP.

 

“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08 or 2.09.

 

“Convertible Notes” means the Company’s 3.375% Senior Convertible Notes due 2033.

 

“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including, without limitation, pursuant to securitization transactions), (b) to the extent such obligations would appear as a liability of such Person in accordance with GAAP, all obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) the face or maximum amount of all obligations of such Person which have been or may be drawn upon under acceptances, letters of credit or similar extensions of credit, (g) all Hedge Agreement Obligations of such Person, (h) all payment obligations of other Persons whose financial statements are not Consolidated with those of such

 

Person (collectively, “Guaranteed Debt”) guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Guaranteed Debt or to advance or supply funds for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, expressly for the purpose of enabling the debtor to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor of such other Person against loss, and (i) all Debt of the type referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.

 

“Debt for Borrowed Money” of any Person means all items that, in accordance with GAAP, would be classified as short term borrowings and long term debt on a Consolidated statement of financial position of such Person.

 

“Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

 

“Default Interest” has the meaning specified in Section 2.07(b).

 

 “Defaulted Advance” means, with respect to any Lender at any time, the portion of any Advance required to be made by such Lender to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time which has not been made by such Lender or by the Agent for the account of such Lender pursuant to Section 2.02(d) as of such time.  In the event that a portion of a Defaulted Advance shall be deemed made pursuant to Section 2.19(a), the remaining portion of such Defaulted Advance shall be considered a Defaulted Advance originally required to be made pursuant to Section 2.01 on the same date as the Defaulted Advance so deemed made in part.

 

“Defaulted Amount” means, with respect to any Lender at any time, any amount required to be paid by such Lender to the Agent or any other Lender hereunder or under any other Loan Document at or prior to such time which has not been so paid as of such time, including, without limitation, any amount required to be paid by such Lender to (a) any Issuing Bank pursuant to Section 2.03(b) to purchase a participation in a Letter of Credit, (b) the Agent pursuant to Section 2.02(d) to reimburse the Agent for the amount of any Advance made by the Agent for the account of such Lender, (c) any other Lender pursuant to Section 2.15 to purchase any participation in Advances owing to such other Lender and (d) the Agent or any Issuing Bank pursuant to Section 8.05 to reimburse the Agent or such Issuing Bank for such Lender’s ratable share of any amount required to be paid by the Lenders to the Agent or such Issuing Bank as provided therein.  In the event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.19(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder or under any other Loan Document on the same date as the Defaulted Amount so deemed paid in part.

 

“Defaulting Lender” means, at any time, a Lender as to which the Agent has notified the Company that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make an Advance, make a payment to the Issuing Bank in respect of an Issuance (each a “funding obligation”), (ii) such Lender has notified the Agent, or has stated publicly, that it will not comply with any such funding obligation hereunder, or has defaulted on its funding obligations under any other loan agreement or credit agreement or other similar/other financing agreement, (iii) such Lender has, for three or more Business Days, failed to confirm in writing to the Agent, in response to a written request of the Agent, that it will comply with its funding obligations hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to such Lender.  Any determination that a Lender is a Defaulting Lender under clauses (i) through (iv) above will be made by the Agent in its sole discretion acting in good faith.  The Agent will promptly send to all parties hereto a copy of any notice to the Company provided for in this definition.

 

“Deposit Accounts” means any checking or other demand deposit account maintained by a Loan Party.

 

“Dilution” means, as of any date, a percentage, based upon the experience of the twelve-month period ending as of the last day of the immediately preceding fiscal month, which is the result of dividing the Dollar amount of (i) bad debt write-downs, discounts, advertising allowances, profit sharing deductions or other non-cash credits with respect to a Loan Party’s Accounts during such period determined consistently with the applicable Loan Party’s accounting practices, by (ii) such Loan Party’s gross sales with respect to Accounts for such Loan Party during such period.

 

“Dilution Reserve” means, as of any date, an amount sufficient to reduce the advance rate against Eligible Receivables by one percentage point for each percentage point by which Dilution is in excess of 5.0%.

 

 “Dollar” means the lawful currency of the United States.

 

“Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Company and the Agent.

 

“EBITDA” means, for any period, net earnings (or net loss) plus, without duplication and to the extent reflected as a charge in the Consolidated statement of earnings, the sum of (a) interest expense, (b) income tax expense (benefit), (c) depreciation expense, (d) amortization expense, (e) any extraordinary expenses or losses, (f) any other non-cash charges that will not at any time result in any cash payment and (g) corporate cash restructuring payments in an amount not to exceed, $143,000,000 during the fiscal year 2008, $275,000,000 during the fiscal year 2009, and $40,000,000 during the fiscal year 2010, and minus, to the extent included in net earnings on the Consolidated statement of earnings, (i) interest income, (ii) any extraordinary income or gains and (iii) any other non-cash income that will not at any time result in any cash payment, in each case determined in accordance with GAAP for such period.

 

“Eligible Assignee” means with respect to the Revolving Credit Facility (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any other Person approved by (x) the Agent, (y) each Issuing Bank and (z) unless an Event of Default has occurred and is continuing at the time any assignment is effected in accordance with Section 9.07, the Company, in each case, such approval not to be unreasonably withheld or delayed; provided, however, that neither any Loan Party nor an Affiliate of a Loan Party shall qualify as an Eligible Assignee.

 

“Eligible Equipment” means Equipment of the Company and its Subsidiaries subject to the Lien of the Collateral Documents, the value of which shall be determined based upon its Net Orderly Liquidation Value.  Criteria and eligibility standards used in determining Eligible Equipment may be fixed and revised from time to time by the Agent in its reasonable discretion.  Unless otherwise from time to time approved in writing by the Agent, no Equipment shall be deemed Eligible Equipment if, without duplication:

 

 

“Eligible Inventory” means, at the time of any determination thereof, without duplication, the Inventory Value of the Loan Parties at such time that is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (m) below.  Criteria and eligibility standards used in determining Eligible Inventory may be fixed and revised from time to time by the Agent in its reasonable discretion.  Unless otherwise from time to time approved in writing by the Agent, no Inventory shall be deemed Eligible Inventory if, without duplication:

 

 

which shall be substantially consistent those in effect on the Amendment Effective Date), or does not otherwise conform to the representations and warranties contained in this Agreement and the other Loan Documents applicable to Inventory; or

 

(i)           it is Inventory used as a sample or prototype, display or display item; or

 

(j)           any Inventory that is damaged, defective or marked for return to vendor, has been deemed by a Loan Party to require rework or is being held for quality control purposes; or

 

(k)           such Inventory does not meet all material applicable standards imposed by any governmental authority having regulatory authority over it; or

 

(l)           any Inventory for which field audits and appraisals have not been completed by the Agent or a qualified independent appraiser reasonably acceptable to the Agent utilizing procedures and criteria acceptable to the Agent for determining the value of such Inventory; or

 

(m)           Inventory that is subject to a voluntary or mandatory recall or is otherwise subject to any similar action that renders it unsaleable.

 

“Eligible Real Property” means the real property listed on Schedule 1.01(a) (and other real property reasonably acceptable to the Agent from time to time) owned in fee (or, in the case of the IDA Properties, owned via a leasehold interest from a local industrial development agency lessor) by any of the Company or any of the US Subsidiary Guarantors as to which all Real Property Deliverables have been delivered to the Agent.  Criteria and eligibility standards used in determining Eligible Real Property may be fixed and revised from time to time by the Agent in its reasonable discretion.

 

“Eligible Receivables” means, at the time of any determination thereof, each Account of each Loan Party that satisfies the following criteria:  such Account (i) has been invoiced to, and represents the bona fide amounts due to a Loan Party from, the purchaser of goods or services, in each case originated in the ordinary course of business of such Loan Party and (ii) is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (r) below.  In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication and to the extent not included in Reserves, to the extent not reflected in such face amount, (A) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Loan Party may be obligated to rebate to a customer pursuant to the terms of any written agreement or understanding), (B) the aggregate amount of all limits and deductions provided for in this definition and elsewhere in this Agreement, if any, and (C) the aggregate amount of all cash received in respect of such Account but not yet applied by a Loan Party to reduce the amount of such Account. Criteria and eligibility standards used in determining Eligible Receivables may be fixed and revised from time to time by the Agent in its reasonable discretion.  Unless otherwise approved from time to time in writing by the Agent, no Account shall be an Eligible Receivable if, without duplication:

 

 

 

Notwithstanding the foregoing, all Accounts of any single Account Debtor and its Affiliates which, in the aggregate, exceed (i) in respect of any Account Debtor whose Public Debt Rating is not less than BBB- by S&P and Baa3 by Moody’s, 20% of all Eligible Receivables and (ii) in respect of any other Account Debt, 10% of all Eligible Receivables shall not be Eligible Receivables.

 

“Enabling Amendment” means that certain Amendment No. 1 to the Existing Credit Agreement, dated as of March 27, 2009, by and among the Lenders party thereto, the Agent and the Borrowers.

 

“Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

 

“Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.

 

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

“Equipment” has the meaning specified in the UCC.

 

“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 of the Code.

 

“ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with

 

respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (g) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

 

“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“Eurodollar Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Company and the Agent.

 

“Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period or, if for any reason such rate is not available, the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Banks (or their respective Affiliates) in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s (or their respective Affiliates’) Eurodollar Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.  If the Reuters Screen LIBOR01 (or any successor page) is unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.08.

 

“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(ii).

 

“Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.

 

“Events of Default” has the meaning specified in Section 6.01.

 

“Excess Availability” means, as of any date, (1) the Revolving Credit Availability Amount minus (2) the sum of the aggregate principal amount of all Advances and the aggregate Available Amount of all Letters of Credit outstanding on such date.

 

“Excluded Account” means (i) any deposit or concentration accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $5,000,000 or exceed $1,000,000 with respect to any one account (or in each case, such greater amounts to which the Agent may reasonably agree), (ii) any payroll, trust and tax withholding accounts funded in the ordinary course of business or required by applicable law or (iii) so long as the aggregate amounts on deposit in all such accounts does not exceed $10,000,000 at any time, any deposit account reasonably required for servicing the Borrowers’ Event Imaging Services business.

 

“Existing Accounts” means the cash concentration accounts and other Deposit Accounts of the Loan Parties set forth on Schedule III.

 

“Existing Credit Agreement” means the credit agreement, dated as of October 18, 2005, by and among the Borrowers, the Agent, the Lenders party thereto and the Issuing Bank.

 

“Extending Lender” means each Lender that, as of the Amendment Effective Date or in accordance with Section 2.21, has agreed to extend its Commitment to the Extension Termination Date.

 

“Extension Termination Date” means, as it applies to Extending Lenders and the Revolving Credit Facility-B, the earlier of (a) the third anniversary of the Amendment Effective Date and (b) the date of termination in whole of the Revolving Credit Commitments pursuant to Section 2.05, 6.01 or 9.14(b).

 

“Facility” means, the Revolving Credit Facility and the Letter of Credit Facility.

 

“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.

 

“Fixed Charge Coverage Ratio” means, as determined on the last day of any fiscal quarter, the ratio of (i) Consolidated EBITDA for the most recently completed period of four consecutive fiscal quarters minus the aggregate amount of any unfinanced capital expenditures paid for such period to (ii) interest payable on, and amortization of debt discount in respect of, all Debt for Borrowed Money during such period plus the aggregate amount of all scheduled principal payments (excluding the aggregate amount of any payments made with respect to the Convertible Notes) plus the aggregate amount of all cash dividend payments to holders of the capital stock of the Company, in each case, of the Company and its Consolidated Subsidiaries on a Consolidated basis.

 

“Fixed Charge Coverage Ratio Trigger Event” means the failure of the Loan Parties to maintain Excess Availability in an amount greater than or equal to $100,000,000 for three (3) consecutive Business Days.  For purposes of this Agreement, the occurrence of a Fixed Charge Coverage Ratio Trigger Event shall be deemed continuing until Excess Availability is greater than or equal to $100,000,000 for thirty (30) consecutive days, at which time a Fixed Charge Coverage Ratio Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement.

 

“Fund” means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

“GAAP” has the meaning specified in Section 1.03.

 

“Guaranteed Obligations” means the Comprehensive Guaranteed Obligations or the Canadian Guaranteed Obligations.

 

“Guarantors” means the Company, the US Subsidiary Guarantors and the Canadian Subsidiary Guarantors.

 

“Guaranty” means the guaranty of each Guarantor set forth in Article VII.

 

“Guaranty Supplement” has the meaning specified in Section 7.05.

 

“Hazardous Materials” means (a) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.

 

“Hedge Agreement Obligations” means the aggregate net liabilities, on a mark-to-market basis as determined in accordance with GAAP, for all Hedge Agreements of a Person calculated as of the end of the most recent month.

 

“Hedge Agreements” means interest rate, currency or commodity swap, cap or collar agreements, interest rate, currency or commodity future or option contracts and other similar agreements.

 

“IDA Properties” means the real property marked with an asterisk on Schedule 1.01(a).

 

“Indenture” means the Indenture dated as of January 1, 1988 between the Company and The Bank of New York, as trustee, as amended from time to time.

 

“Initial Termination Date” means the earlier of (a) October 18, 2010 and (b) the date of termination in whole of the Revolving Credit Commitments pursuant to Section 2.05, 6.01 or 9.14(b).

 

“Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

 

“Intellectual Property” has the meaning specified in Section 4.01(i).

 

“Interest Period” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one, two, three or six months, and subject to clause (c) of this definition, nine or twelve months, as the applicable Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:

 

 

“Inventory” has the meaning specified in the UCC.

 

“Inventory Value” means with respect to any Inventory of a Loan Party at the time of any determination thereof, the standard cost determined on a first in first out basis and carried on the general ledger or inventory system of such Loan Party stated on a basis consistent with its current and historical accounting practices, in Dollars, determined in accordance with the standard cost method of accounting less, without duplication, (i) any markup on Inventory from an Affiliate and (ii) in the event variances under the standard cost method are expensed, a Reserve reasonably determined by the Agent as appropriate in order to adjust the standard cost of Eligible Inventory to approximate actual cost.

 

“Investment” in any Person means any loan or advance to such Person, any purchase or other acquisition of any equity interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (h) or (i) of the definition of “Debt” in respect of such Person.

 

“Issuance” with respect to any Letter of Credit means the issuance, amendment, renewal or extension of such Letter of Credit.

 

“Issuing Bank” means an Initial Issuing Bank, any Eligible Assignee to which a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 or any other Lender so long as such Eligible Assignee or Lender expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of its Applicable Lending Office (which information shall be recorded by the Agent in the Register), for so long as such Initial Issuing Bank, Eligible Assignee or Lender, as the case may be, shall have a Letter of Credit Commitment.

 

“Landlord Lien Waiver” means a written agreement that is reasonably acceptable to the Agent, pursuant to which a Person shall waive or subordinate its rights (if any, that are or would be prior to the Liens granted to the Agent for the benefit of the Lenders under the Loan Documents) and claims as

 

landlord in any Inventory or Equipment of a Loan Party for unpaid rents, grant access to the Agent for the repossession and sale of such Inventory or Equipment and make other agreements relative thereto.

 

“L/C Cash Deposit Account” means an interest bearing cash deposit account to be established and maintained by the Agent, over which the Agent, as provided in Section 6.02, shall have sole dominion and control, upon terms as may be satisfactory to the Agent.

 

“L/C Related Documents” has the meaning specified in Section 2.06(b)(i).

 

“Leasehold Deliverables” means, with respect to each parcel of the IDA Properties, estoppel and consent agreements, in form and substance reasonably satisfactory to the Agent, executed by the lessor of the applicable IDA Property, along with (x) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest and otherwise in form satisfactory to the Agent.

 

“Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.

 

“Lenders” means each Extending Lender, each Non-Extending Lender, each Assuming Lender that shall become a party hereto pursuant to Section 2.21, each Issuing Bank and each Person that shall become a party hereto pursuant to Section 9.07.

 

“Letter of Credit” has the meaning specified in Section 2.01(b).

 

“Letter of Credit Agreement” has the meaning specified in Section 2.03(a).

 

“Letter of Credit Commitment” means, with respect to each Issuing Bank, the obligation of such Issuing Bank to issue Letters of Credit for the account of the Company and its specified Subsidiaries in (a) the amount set forth opposite the Issuing Bank’s name on Schedule I hereto under the caption “Letter of Credit Commitment” or (b) if such Issuing Bank has entered into one or more Assignment and Acceptances or is a Lender that has become an Issuing Bank after the Amendment Effective Date in accordance with the definition of “Issuing Bank”, the amount set forth for such Issuing Bank in the Register maintained by the Agent pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of Credit Commitment”, in each case as such amount may be reduced prior to such time pursuant to Section 2.05.

 

“Letter of Credit Facility” means, at any time, an amount equal to the least of (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time, (b) $250,000,000 and (c) the aggregate amount of the Revolving Credit Commitments, as such amount may be reduced at or prior to such time pursuant to Section 2.05.

 

“Lien” means any lien, security interest or other charge or encumbrance of any kind on the property of a Person, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property, provided the term “Lien” shall not include any license of intellectual property.

 

“Loan Documents” means (i) this Agreement, (ii) the Notes, (iii) Collateral Documents and (iv) each Letter of Credit Agreement, in each case as amended from time to time.

 

“Loan Parties” means the Borrowers and the Guarantors.

 

“Loan Value” means, (a) with respect to Eligible Receivables, up to 85% of the value of Eligible Receivables less the applicable Dilution Reserve plus (b) with respect to Eligible Inventory, the lesser of (i) 65% of the cost of domestic Eligible Inventory and (ii) 85% of the Net Orderly Liquidation Value of Eligible Inventory (based on the then most recent independent inventory appraisal) on any date of determination plus (c) (x) 50% of the fair market value of Eligible Real Property and (y) 75% of the Net Orderly Liquidation Value of Eligible Equipment, provided that the sum of the values included in clauses (x) and (y) of this clause (c) shall not exceed the lower of (A) 20% of the Revolving Credit Availability Amount and (B) the maximum amount that, if secured, would not require security to be granted under the Indenture.

 

“Material Adverse Change” means any material adverse change in the business, condition (financial or otherwise), operations, performance or properties of the Company and its Consolidated Subsidiaries taken as a whole.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance or properties of the Company and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under any Loan Document or (c) the ability of any Significant Loan Party to perform its obligations under any Loan Document to which it is a party.

 

“Material Subsidiary” means (a) with respect to the Company, each direct Subsidiary of the Company that, for the most recently completed fiscal year of the Company for which audited financial statements are available, either (i)  has, together with its Subsidiaries, assets that exceed 5% of the total assets shown on the Consolidated statement of financial condition of the Company as of the last day of such period or (ii) has, together with its Subsidiaries, net sales that exceed 5% of the Consolidated net sales of the Company for such period; and (b) with respect to Kodak Canada, means any direct Subsidiary of Kodak Canada that, as of the end of the most recently completed fiscal year for which audited financial statements of the Company are available, either (y) has, together with its Subsidiaries, assets that exceed 5% of the total assets shown on consolidating statements of Kodak Canada and its Subsidiaries used in preparation of the Company’s Consolidated statement of financial condition as of the last day of such period or (z) has, together with its Subsidiaries, net sales that exceed 5% of the Consolidated net sales of Kodak Canada and its subsidiaries for such period.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Mortgages” means deeds of trust, trust deeds, mortgages and deeds to secure Debt, delivered as in accordance with Section 5.01(n).

 

“Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

 

“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“Net Cash Proceeds” means, with respect to any sale, lease, transfer or other disposition by the Company or any of its Subsidiaries of any asset to a Person that is not an Affiliate of the Company, the aggregate amount of cash actually received from time to time (whether as initial consideration or through payment or disposition of deferred consideration, and if received in a currency other than Dollars, determined after the conversion of such cash into Dollars using the prevailing exchange rate in effect on the

 

date such local currency cash is received) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication) (a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal and accounting fees, filing fees, finder’s fees and other similar fees and commissions and other expenses of the transaction, (b) the amount of taxes payable in connection with or as a result of such transaction or (c) the amount of any Debt secured by a Lien on such asset that, by the terms of the agreement or instrument governing such Debt, is required to be repaid upon such disposition, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash (or, in the case of taxes, within 12 months of the time of receipt of such cash), actually paid to a Person that is not an Affiliate of the Borrower and are properly attributable to such transaction or to the asset that is the subject thereof, provided, however, that Net Cash Proceeds shall not include any license by the Company or its Subsidiaries of its Intellectual Property in the ordinary course of business, any settlement by the Company or its Affiliates with respect to claims relating to Intellectual Property rights or any proceeds from the sale or transfer of the Intellectual Property listed on Part A of Schedule X of the Security Agreement.

 

“Net Orderly Liquidation Value” means, with respect to Eligible Equipment and Eligible Inventory, as the case may be, the orderly liquidation value with respect to such Equipment or Inventory, net of expenses estimated to be incurred in connection with such liquidation, based on the most recent third party appraisal in form and substance, and by an independent appraisal firm, reasonably satisfactory to the Agent.

 

“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender or a Potential Defaulting Lender.

 

“Non-Extending Lender” means each Lender that is not an Extending Lender.

 

“Non-Revolving Obligations” means Obligations in respect of the Letters of Credit listed on Schedule 1.01(b) hereto.

 

“Note” means a promissory note of the Company payable to the order of any Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of the Company to such Lender resulting from the Advances made by such Lender.

 

“Notice of Borrowing” has the meaning specified in Section 2.02(a).

 

“Notice of Issuance” has the meaning specified in Section 2.03(a).

 

“Obligations” means all liabilities and obligations of every nature of each Loan Party and its Subsidiaries from time to time owed to the Agents, the Lenders or any of them, under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise and whether primary, secondary, direct, indirect, contingent, fixed or otherwise.

 

“Original Effective Date” has the meaning specified in Section 3.01.

 

“Other Taxes” has the meaning specified in Section 2.14(b).

 

“Parent Company” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

 

“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

 

“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).

 

“Permitted Collateral Liens” has the meaning specified in the definition of “Eligible Inventory”.

 

“Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced:  (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under the proviso of Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable, were not incurred in connection with and do not secure Debt and do not materially adversely affect the use of such property for its present purposes; and (e) Liens or other conveyances of property in favor of any governmental department, agency or instrumentality to secure partial, progress or advance or other payments (other than in respect of borrowed money) pursuant to any  contract or statute.

 

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

 

“Plan” means a Single Employer Plan or a Multiple Employer Plan.

 

“Potential Defaulting Lender” means, at any time, a Lender (i) as to which the Agent has notified the Company that an event of the kind referred to in the definition of “Lender Insolvency Event” has occurred and is continuing in respect of any financial institution affiliate of such Lender, (ii) as to which the Agent or the Issuing Bank has in good faith reasonably determined and notified the Company that such Lender or its Parent Company or a financial institution affiliate thereof has notified the Agent, or has stated publicly, that it will not comply with its funding obligations under any other loan agreement or credit agreement or other similar/other financing agreement or (iii) that has, or whose Parent Company has, a rating for any class of its long-term senior unsecured debt lower than BBB- by S&P and Baa3 by Moody’s.  Any determination that a Lender is a Potential Defaulting Lender under any of clauses (i) through (iii) above will be made by the Agent or, in the case of clause (ii), the Issuing Bank, as the case may be, in its sole discretion acting in good faith and upon consultation with the Company.  The Agent will promptly send to all parties hereto a copy of any notice to the Company provided for in this definition.

 

“Projections” has the meaning specified in Section 5.01(h)(viii).

 

“Public Debt Rating” means, as of any date, the rating that has been most recently announced by either S&P or Moody’s, as the case may be, for any class of long-term senior secured debt issued by the Company or, if any such rating agency shall have issued more than one such rating, the lowest such rating issued by such rating agency.  For purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin in respect of the Revolving Credit Facility-A and the Applicable Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating, the Applicable Margin in respect of the Revolving Credit Facility-A and the Applicable Percentage will be set in accordance with Level 4 under the definition of “Applicable Margin” or “Applicable Percentage”, as the case may be; (c) if the ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin in respect of the Revolving Credit Facility-A and the Applicable Percentage shall be based upon the lower rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings are established, each reference to the Public Debt Rating

 

announced by S&P or Moody’s, as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.

 

“Ratable Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Revolving Credit Commitment as in effect immediately prior to such termination) and the denominator of which is the aggregate amount of all Revolving Credit Commitments at such time (or, if the Revolving Credit Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the aggregate amount of all Revolving Credit Commitments as in effect immediately prior to such termination).

 

“Real Property Deliverables” means, with respect to each parcel of real property, Mortgages in substantially the form of Exhibit F hereto (with such changes as may be reasonably satisfactory to the Agent and its counsel to account for local law matters or local customs) and otherwise in form and substance satisfactory to the Agent together with the following:  (i)  evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered by the Company or US Subsidiary Guarantor (as well as the applicable industrial development authority lessor for all IDA Properties; provided, however, that if, after using commercially reasonable efforts, the Company or US Subsidiary Guarantor is unable to secure the participation of the applicable industrial development agency lessor as a mortgagor or grantor, then in lieu thereof, the Company or US Subsidiary may deliver the Leasehold Deliverables together with a Mortgage of the IDA Properties executed solely by the Company or US Subsidiary Guarantor) and are in form suitable for filing or recording in all filing or recording offices that the Agent may deem necessary or desirable in order to create a valid first and subsisting Lien (subject to Permitted Liens) on the property described therein and that all filing and recording taxes and fees have been or, contemporaneous with the recording of such Mortgage, will be, paid; (ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (not to include zoning endorsements) and in amount reasonably acceptable to the Agent, issued, coinsured and reinsured by title insurers acceptable to the Agent, insuring the Mortgages to be valid first and subsisting Liens on the real property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future Advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Agent may reasonably deem necessary or desirable, and to the extent available using commercially reasonable efforts, a zoning compliance letter or similar document as may be available in accordance with local practice or custom from the applicable municipality; (iii) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated a recent date reasonably acceptable to the Agent and certified to the Agent and the issuer of the Mortgage Policies and otherwise in a manner reasonably satisfactory to the Agent by a land surveyor duly registered and licensed in the jurisdictions in which the real property described in such surveys is located and reasonably acceptable to the Agent, showing all buildings and other improvements, any off site improvements, the location of any easements, parking spaces, rights of way, building set back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than Permitted Encumbrances (as defined in the Mortgage) and other defects reasonably acceptable to the Agent; provided, however, that with respect to any property, the Agent may accept, in its reasonable discretion, a survey as described above with only optional Table A item #15 (i.e., aerial photographs and/or boundary surveys) reasonably acceptable to the Agent and otherwise sufficient to allow the title insurer to issue a survey endorsement; (iv) an appraisal complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, which appraisals shall be from a Person acceptable to the Agent and otherwise in form and substance satisfactory to the Agent; (v) without duplication of the opinions of counsel provided pursuant to Schedule 1.01(a) hereto, (A) favorable opinions of local counsel for the Loan Parties in states in which the Eligible Real Property is located, with respect to the enforceability and perfection of the Mortgage and any related fixture filings, (B) a favorable opinion from general counsel or local counsel for the Loan Parties with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of the Mortgage and (C) for any IDA Property, a

 

favorable opinion from counsel to the industrial development agency with respect to the formalities in granting the Mortgage and the enforceability of the Mortgage, in each case, in form and substance reasonably satisfactory to the Agent; (vi) evidence in the form of customary insurance certificates of the insurance required by the terms of the Mortgage; and (vii) such other consents, agreements and confirmations of third parties as the Agent may reasonably deem necessary or desirable, to the extent customary in the jurisdictions where such real property is located, but provided that in no event will Agent require estoppel certificates from tenants in the real property unless such tenants occupy greater than 10 percent of the usable area of such property, and evidence that all other actions that the Agent may reasonably deem necessary or desirable, to the extent customary in the jurisdictions where such real property is located, in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken.

 

 “Reference Banks” means Citibank, Bank of America, N.A, Lloyds TSB Bank PLC and Credit Suisse, Cayman Islands Branch.

 

“Register” has the meaning specified in Section 9.07(d).

 

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

“Rent Reserve” means, with respect to any plant, warehouse, distribution center or other operating facility where any Eligible Inventory or Eligible Equipment subject to landlords’ Liens or other Liens arising by operation of law is located, and with respect to which no Landlord Lien Waiver has been delivered to Agent, a reserve equal to three month’s rent at such plant, warehouse, distribution center, or other operating facility, and such other reserve amounts that may be determined by the Agent in its reasonable discretion.

 

“Replacement Lender” has the meaning specified in Section 2.20.

 

“Required Lenders” means at any time Lenders owed at least a majority in interest of the sum of (a) the then aggregate unpaid principal amount of the Advances outstanding at such time and (b) the Unused Revolving Credit Commitments at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time and (B) the Unused Revolving Credit Commitment of such Lender at such time.

 

“Reserves” means, at any time of determination and without duplication, (a) a reserve for Secured Agreements, (b) Rent Reserves and (c) such other reserves as determined from time to time in the reasonable discretion of the Agent to preserve and protect the value of the Collateral; provided that, for the first 90 days following the Amendment Effective Date (or such later date as may be agreed by the Agent in its sole discretion), the Rent Reserve shall not apply with respect to any real property as to which the Company is using its commercially reasonable efforts to obtain a Landlord Lien Waiver.

 

“Responsible Officer” means the chief executive officer, president, chief financial officer, secretary, treasurer or controller of a Loan Party.  Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

“Revolving Credit Availability Amount” means, the lesser of (i) the Borrowing Base in respect of a Borrower and (ii) the Revolving Credit Commitments at such time.

 

“Revolving Credit Commitment” means as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit Commitment”, which shall be

 

designated as a Commitment under the Revolving Credit Facility-A or the Revolving Credit Facility-B, (b) that is an Assuming Lender, the amount set forth in the applicable Assumption Agreement or (c) if such Lender has entered into an Assignment and Acceptance, the amount set forth for such Lender in the Register maintained by the Agent pursuant to Section 9.07(d), as such amount may be reduced pursuant to Section 2.05 or increased pursuant to Section 2.21.

 

“Revolving Credit Facility” means, the Revolving Credit Facility-A and the Revolving Credit Facility-B.

 

“Revolving Credit Facility-A” means, at any time, the aggregate amount of the Non-Extending Lenders’ Revolving Credit Commitments at such time.

 

“Revolving Credit Facility-B” means, at any time, the aggregate amount of the Extending Lenders’ Revolving Credit Commitments at such time.

 

“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

 

“Secured Agreement” has the meaning specified in the Security Agreement.

 

“Secured Parties” has the meaning specified in the Security Agreement.

 

“Secured Obligations” has the meaning specified in the Security Agreement.

 

“Security Agreement” means the Security Agreement delivered on the Original Effective Date in accordance with Section 3.01(g)(ii), as amended and restated as of the Amendment Effective Date.

 

“Significant Loan Party” means each Borrower and any other Loan Party with assets included in Collateral having a value of at least $50,000,000 as of the end of the preceding fiscal year of the Company.

 

“Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

“Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“Specified Collateral” has the meaning specified in the Security Agreement and in the Canadian Security Agreement.

 

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits

 

of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

 

“Supermajority Lenders” means, at any time, Lenders owed or holding at least 66 2/3% in interest of the sum of (a) the aggregate principal amount of the Advances outstanding at such time and (b) the aggregate Unused Revolving Credit Commitment at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Supermajority Lenders at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time and (B) the Unused Revolving Credit Commitment of such Lender at such time.

 

“Type” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.

 

“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

 

“Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank, the obligation of such Issuing Bank to issue Letters of Credit for the account of the Company or its specified Subsidiaries in an amount equal to the excess of (a) the amount of its Letter of Credit Commitment over (b) the aggregate Available Amount of all Letters of Credit issued by such Issuing Bank.

 

“Unused Revolving Credit Commitment” means, with respect to each Lender at any time, (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender) and outstanding at such time, plus (ii) such Lender’s Ratable Share of (A) the aggregate Available Amount of all the Letters of Credit outstanding at such time and (B) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by such Lender and outstanding at such time.

 

“US Guarantor” means the Company and each US Subsidiary Guarantor.

 

“US Subsidiary Guarantor” means the direct and indirect wholly-owned (other than directors’ qualifying shares or similar holdings under applicable law) Subsidiaries of the Company organized under the laws of a state of the United States of America as listed on Part A of Schedule II hereto and, as of the date of such requirement, each other Subsidiary of the Company that shall be required to execute and deliver a guaranty pursuant to Section 5.01(i).

 

“Voting Stock” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

 

“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

 

SECTION 1.02.  Computation of Time Periods.  In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

 

SECTION 1.03. Accounting Terms.  All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States of America consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) (“GAAP”).

 

 

 

AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT

 

(b)           Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than eighteen separate Borrowings.

 

(c)           Each Notice of Borrowing shall be irrevocable and binding on the Borrower delivering such notice.  In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure of such Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.

 

(d)           Unless the Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02, as applicable, and the Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and the applicable Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of a Borrower, the interest rate applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.

 

(e)           The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

 

(a)  Request for Issuance.  (i) Each Letter of Credit shall be issued upon notice, given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the proposed Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing Bank may agree), by the Company to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt notice thereof.  Each such notice by the Company of Issuance of a Letter of Credit (a “Notice of Issuance”) shall be by telephone, confirmed promptly in writing, or by telecopier, specifying therein the requested (A) date of such Issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit (which shall not be later than 10 Business Days before the Extension Termination Date); provided that after giving effect to each Issuance, the sum of the Available Amount of Letters of Credit that expire after the Initial Termination Date plus the principal amount of outstanding Advances owed to the Extending Lenders shall not exceed the Revolving Credit Facility-B, (D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of Credit, such Letter of Credit shall be issued pursuant to such application and agreement for letter of credit as such Issuing Bank and the Company shall agree for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”).  If the requested form of

 

such Letter of Credit is acceptable to such Issuing Bank in its reasonable discretion (it being understood that any such form shall have only explicit documentary conditions to draw and shall not include discretionary conditions), such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Section 3.02, make such Letter of Credit available to the Company at its office referred to in Section 9.02 or as otherwise agreed with the Company in connection with such Issuance.  In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.

 

(b)           Participations.  By the Issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing or decreasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Ratable Share of the Available Amount of such Letter of Credit.  The Company hereby agrees to each such participation.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the account of such Issuing Bank, such Lender’s Ratable Share of each drawing made under a Letter of Credit funded by such Issuing Bank and not reimbursed by the Company on the date funded, or of any reimbursement payment required to be refunded to the Company for any reason, which amount will be advanced, and deemed to be a Advance hereunder, regardless of the satisfaction of the conditions set forth in Section 3.02.  Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit at each time such Lender’s Revolving Credit Commitment is amended pursuant to an assignment in accordance with Section 9.07 or otherwise pursuant to this Agreement.  Notwithstanding anything contained in this Section 2.03(b) to the contrary, each Non-Extending Lender’s participations in Letters of Credit that expire after the Initial Termination Date shall terminate upon the Initial Termination Date.

 

(c)           Drawing and Reimbursement.  The payment by an Issuing Bank of a draft drawn under any Letter of Credit which is not reimbursed by the Company on the date funded shall constitute for all purposes of this Agreement the making by any such Issuing Bank of a Advance, which shall be a Base Rate Advance, in the amount of such draft, without regard to whether the making of such a Advance would exceed such Issuing Bank’s Unused Revolving Credit Commitment.  Each Issuing Bank shall give prompt notice to the Company and the Agent of each drawing under any Letter of Credit issued by it.  Upon written demand by such Issuing Bank, with a copy of such demand to the Agent and the Company, each Lender shall pay to the Agent such Lender’s Ratable Share of such outstanding Advance pursuant to Section 2.03(b).  Each Lender acknowledges and agrees that its obligation to make Advances pursuant to this paragraph (c) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing Bank.  Each Lender agrees to fund its Ratable Share of an outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank, provided that notice of such demand is given not later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time.  If and to the extent that any Lender shall not have so made the amount of such Advance available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable.  If such Lender shall pay to the Agent such amount for the account of any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Advance made by such Issuing Bank shall be reduced by such amount on such Business Day.

 

 

(e)           Failure to Make Advances.  The failure of any Lender to make the Advance to be made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on such date.  No failure by any Lender to make such Advances shall limit or restrict the availability of any Letter of Credit to the Company.

 

    (ii)           The Company shall pay to each Issuing Bank, for its own account, a fronting fee and such other commissions, issuance fees, transfer fees and other fees and charges in connection with the Issuance or administration of each Letter of Credit as the Company and such Issuing Bank shall agree.

 

(d) Agent’s Fees.  The Company shall pay to the Agent for its own account the fees set forth in the fee letter dated March 5, 2009 between the Company and the Agent, as such fee letter may from time to time be amended by the Company and the Agent.

 

 

 (i)  Base Rate Advances.  During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin in effect from time to time, payable in arrears quarterly on the last day of each January, April, July and October during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

 

 

(g)    Interest Act (Canada).  With respect to Advances made to Kodak Canada, whenever a rate of interest hereunder is calculated on the basis of a year (the “deemed year”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

 

(h)     Nominal Rates; No Deemed Reinvestment.  With respect to Advances made to Kodak Canada, the principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement; all interest payments to be made hereunder shall be paid without allowance or deduction for reinvestment or otherwise, before and after maturity, default and judgment.  The rates of interest specified in this Agreement are intended to be nominal rates and not effective rates.  Interest calculated hereunder shall be calculated using the nominal rate method and not the effective rate method of calculation.

 

(i)           Interest Paid by Kodak Canada.  Notwithstanding any provision of this Agreement, in no event shall the aggregate “interest” (as defined in Section 347 of the Criminal Code (Canada)) payable by Kodak Canada under this Agreement exceed the effective annual rate of interest on the “credit advanced” (as defined in the Section) under this Agreement lawfully permitted by that Section and, if any payment, collection or demand pursuant to this Agreement in respect of “interest” (as defined in that Section) is determined to be contrary to the provisions of that Section, such payment, collection or demand shall be deemed to have been made by mutual mistake of Kodak Canada and the Lenders and the amount of such payment or collection shall be refunded to Kodak Canada.  For the purposes of this Agreement, the effective annual rate of interest shall be determined in accordance with generally accepted actuarial practices and principles over the relevant term and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Lenders will be prima facie evidence of such rate.

 

 

the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing made to it in whole or in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c); provided, further, that any such prepayments applied in respect of the Revolving Credit Facility-A shall be paid to the Agent for the ratable account of each Non-Extending Lender, and any such prepayments applied in respect of the Revolving Credit Facility-B shall be paid to the Agent for the ratable account of each Extending Lender.