Kodak 2011 Annual Report Download - page 174

extension is subordinated in right of payment to the Obligations on terms as favorable in all material respects to the Lenders as those
contained in the documentation governing the Debt being modified, refinanced, refunded, renewed, replaced, exchanged or extended; (d) the terms
and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed, replaced, exchanged or extended
Debt are, (A) either (i) customary for similar debt securities in light of then-
prevailing market conditions (it being understood that such Debt shall
not include any financial maintenance covenants and that any negative covenants shall be incurrence-
based) or (ii) not materially less favorable to
the Loan Parties or the Lenders, taken as a whole, than the terms and conditions of the Debt being modified, refinanced, refunded, renewed,
replaced, exchanged or extended and (B) when taken as a whole (other than interest rate and redemption premiums), not more restrictive to the
Company and its Subsidiaries than those set forth in this Agreement ( provided
that a certificate of a Responsible Officer of the Company delivered
to the Agent in good faith at least five Business Days prior to the incurrence of such Debt, together with a reasonably detailed description of the
material terms and conditions of such Debt or drafts of the documentation relating thereto, stating that the Company has determined in good faith
that such terms and conditions satisfy the requirement set out in the foregoing clause (d), shall be conclusive evidence that such terms and
conditions satisfy such requirement unless the Agent provides notice to the Company of its objection during such five Business Day period); (e)
any such modification, refinancing, refunding, renewal, replacement, exchange or extension is incurred by the Person who is the obligor or
guarantor, or a successor to the obligor or guarantor, on the Debt being modified, refinanced, refunded, renewed, replaced or extended; (f) any
such modification, refinancing, refunding, renewal, replacement, exchange or extension of Existing Second Lien Debt shall be subject to (and the
holders of, and agents and/or trustees in respect of, any such Debt shall be bound by) the Existing Intercreditor Agreement; and (g) at the time
thereof, no Event of Default shall have occurred and be continuing.
“ Person ”
means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited or unlimited liability company or other entity, or a government or any political subdivision or agency thereof.
“ Petition Date ” has the meaning specified in the Introductory Statement.
“ Plan ” means a Single Employer Plan or a Multiple Employer Plan, but excluding any Canadian Pension 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, in the case of a Revolving Lender, the Issuing Banks have 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 Banks, as the case may be, in their 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.
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