AMENDMENT NO. 6 AND WAIVER
THIS AMENDMENT NO. 6 AND WAIVER (this "AMENDMENT") effective as of
December 31, 1999, by and among VARI-LITE INTERNATIONAL, INC., a Delaware
corporation (the "BORROWER"), SUNTRUST BANK (FORMERLY SUNTRUST BANK,
ATLANTA), XXXXX BROTHERS XXXXXXXX & CO., CHASE BANK OF TEXAS, N.A. (FORMERLY
KNOWN AS TEXAS COMMERCE BANK NATIONAL ASSOCIATION), COMERICA BANK-TEXAS and
BANK ONE, NA (FORMERLY THE FIRST NATIONAL BANK OF CHICAGO) (collectively, the
"LENDERS"), SUNTRUST BANK, as agent and collateral agent for the Lenders (in
such capacities, the "AGENT" and "COLLATERAL AGENT", respectively), and XXXXX
BROTHERS XXXXXXXX & CO, as co-agent for the Lenders (in such capacity, the
"CO-AGENT").
W I T N E S S E T H:
WHEREAS, Borrower, the Lenders, the Agent, the Collateral Agent,
and the Co-Agent are parties to a certain Multicurrency Credit Agreement
dated as of December 19, 1997, as amended by a certain Amendment No. 1 to
Credit Agreement dated as of April 21, 1998, by a certain Amendment No. 2 to
Credit Agreement dated as of July 31, 1998, by a certain Amendment No. 3 to
Credit Agreement dated as of September 30, 1998, by a certain Amendment No. 4
to Credit Agreement dated as of April 1, 1999, and by a certain Amendment No.
5 to Credit Agreement dated as of August 25, 1999 (as so amended, the "CREDIT
AGREEMENT"; defined terms used herein without definition shall have the
meanings ascribed to such terms in the Credit Agreement);
WHEREAS, Borrower and the Lenders have agreed to amend the Credit
Agreement as more specifically set forth below;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, and
effective as of the Effective Date (as hereinafter defined), the Credit
Agreement is hereby amended as follows:
1.1 SECTION 1.01 of the Credit Agreement is hereby amended by
adding the following defined terms and accompanying definitions in proper
alphabetical order:
"AMENDMENT NO. 6" shall mean that certain Amendment No. 6 and Waiver
effective as of December 31, 1999, by and among Borrower, the Agent,
Collateral Agent, the Co-Agent, and the Lenders, as the same may be
amended, restated and supplemented from time to time.
"BUSINESS PLAN" shall mean the detailed business plan of the Borrower
to be delivered to the Lenders pursuant to Section 6.17.
"CONSULTANT'S REPORT" shall mean the report of Borrower's management
consultant to be issued pursuant to the September 15, 1999 engagement
letter between the Borrower and such consultant as described in Section
6.17.
1.2 ARTICLE II of the Credit Agreement is hereby amended by adding
at the end of said ARTICLE II a new SECTION 2.08 as follows:
SECTION 2.08. FUNDING AFTER DECEMBER 31, 1999.
(a) Notwithstanding anything to the contrary set forth in
SECTION 2.02 or 2.03, effective at all times after December 31, 1999,
(i) all Domestic Syndicated Loans and Swing Line Loans shall be made
and shall thereafter remain outstanding as Base Rate Advances and
shall not be made as Eurodollar Advances or as Transaction Rate
Advances, and (ii) all Domestic Syndicated Loans and Swing Line Loans
outstanding as Eurodollar Advances or Transaction Rate Advances shall,
at the expirations of their current Interest Periods, be converted
into and remain outstanding as Base Rate Advances.
(b) Notwithstanding anything to the contrary set forth in
SECTION 2.04, effective at all times after December 31, 1999, Borrower
shall not be entitled to request any Multicurrency Syndicated Loans,
and the Multicurrency Syndicated Loan Subcommitment of each Lender is
hereby terminated in its entirety.
1.3 SECTION 3.03(d) of the Credit Agreement is hereby amended by
deleting the second sentence of said SECTION 3.03(d) in its entirety and
substituting in lieu thereof the following sentence:
Interest on all outstanding Base Rate Advances shall be payable
monthly in arrears on the last calendar day of each month in each
year, commencing January 31, 2000.
1.4 SECTION 6.07 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of subsection (u) thereof, (ii) re-lettering
existing subsection (v) thereof as subsection (y), and (iii) adding new
subsections (w) and (x) as follows:
(w) 13-WEEK ROLLING CASH FLOW STATEMENTS. As soon as
available and in any event within 30 days after the end of each
calendar month of each fiscal year of Borrower, commencing January 30,
2000 for the month ending December 31, 1999, a 13-week rolling cash
flow statement (with variances for the month and year-to-date);
(x) BUSINESS PLAN PROGRESS REPORTS. Not less frequently than
semi-monthly, a report in reasonable detail to the Lenders (which
report may be
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submitted by electronic mail) regarding Borrower's progress in
implementing certain strategic initiatives identified in the Business
Plan; and
1.5 SECTION 6.14 of the Credit Agreement is hereby amended by
deleting said SECTION 6.14 in its entirety and substituting in lieu thereof the
following SECTION 6.14:
SECTION 6.14. FOREIGN COLLATERAL.
(a) Not later than 30 days after Borrower's receipt of
written notice from the Agent requiring the same (such notice not to
be delivered prior to April 1, 2000), Borrower shall, and shall cause
its Subsidiaries to, execute and deliver to Collateral Agent for the
ratable benefit of the Lenders and Agent, agreements and other
documents in form and substance satisfactory to Collateral Agent
granting and conveying a first-priority perfected Lien on all tangible
and intangible personal property of such Subsidiaries located outside
the United States, to the extent a perfected Lien thereon may be
created under applicable law, including without limitation, such
instruments and other agreement as may be necessary or appropriate to
evidence obligations of such Subsidiaries being secured by such Lien.
Borrower shall further cause to be delivered to Collateral Agent such
other agreements, instruments, and other documents constituting
appropriate collateral filings, recordings and registrations, and
reports, certificates and opinions of counsel evidencing and
confirming the validity, perfection, priority and enforceability of
such Liens.
(b) Not later than February 20, 2000, Borrower shall submit
to the Lenders a certificate (i) confirming that the equipment of
Vari-Lite, Inc. used in Borrower's European rental operations has
identification tags or other markings that would put third parties on
notice that the equipment is owned by Vari-Lite, Inc., rather than by
any of the Foreign Subsidiaries, and (ii) attaching true and correct
copies of the equipment lease agreements in effect between Vari-Lite,
Inc. and those Foreign Subsidiaries that use equipment owned by
Vari-Lite, Inc. in their respective rental operations.
1.6 SECTION 6.17 of the Credit Agreement is hereby amended by
deleting said SECTION 6.17 in its entirety and substituting in lieu thereof
the following SECTION 6.17:
SECTION 6.17. BUSINESS PLAN AND CONSULTANT'S REPORT. Borrower shall
cause to be delivered to the Lenders not later than January 31, 2000, the
proposed final versions of the Business Plan and Consultant's Report. Such
proposed final versions shall incorporate the additional information set
forth in the letter from Agent to Borrower dated as of December 31, 1999.
The Lenders shall have five (5) Business Days to review and provide
comments to Borrower on such Business Plan and Consultant's Report, and
Borrower shall deliver to the Lenders the final Business Plan and
Consultant's Report not later than February 20, 2000, which documents must
be satisfactory to the Lenders.
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1.7 ARTICLE VI of the Credit Agreement is hereby amended by adding
a new SECTION 6.18 at the end thereof as follows:
SECTION 6.18. ACTIONS REGARDING COLLATERAL. Borrower agrees promptly
to take, and cause to be taken, all necessary and appropriate action
requested of it by the Collateral Agent in respect of the collateral
described in the Security Documents, including without limitation,
executing and delivering to Collateral Agent supplemental collateral
assignments and related documents and filings in respect of patents and
trademarks of Borrower and its Subsidiaries and the equipment lease
agreements referred to in SECTION 6.14(b).
SECTION 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment
shall become effective as of the date first above written (the "EFFECTIVE DATE")
on the first day when the following conditions have been satisfied:
(a) This Amendment shall have been executed and delivered by
Borrower, the Lenders, the Agent and the Co-Agent;
(b) Borrower shall have paid waiver and amendment fees of $10,000
to each Lender, plus an additional $10,000 fee to the Agent (in addition to
the waiver and amendment fee paid to it in its capacity as Lender); and
(c) The Agent shall have received payment in full from Borrower for
all outstanding costs and expenses required to be paid or reimbursed by
Borrower under the Credit Agreement, including without limitation, all
professional fees and expenses of counsel for the Agent.
SECTION 3. WAIVER. The Lenders hereby agree that, to the extent any
Default or Event of Default shall have occurred and existed as of December 31,
1999 as a result of the following matters, such Default or Event of Default
shall be and is hereby waived by the Lenders effective as of December 31, 1999,
as provided below:
(1) Borrower's failure to deliver its Business Plan and
Consultant's Report as required by SECTION 6.17 of the Credit Agreement as set
forth in Amendment No. 5; PROVIDED, HOWEVER, that Borrower acknowledges and
agrees that an Event of Default will exist if Borrower fails to satisfy the
requirements of SECTION 6.17 of the Credit Agreement as amended by this
Amendment No. 6;
(2) Borrower's failure to execute and deliver to Collateral
Agent the agreements and documents described in SECTION 6.14 of the Credit
Agreement as set forth in Amendment No. 5; PROVIDED, HOWEVER, that Borrower
acknowledges and agrees that an Event of Default shall exist if Borrower fails
to satisfy the requirements of SECTION 6.14 of the Credit Agreement as amended
by this Amendment No. 6; and
(3) Borrower's failure to deliver the audited financial
statements for Borrower's fiscal year ending September 30, 1999 as required by
SECTION 6.07(a) of the Credit
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Agreement; PROVIDED, HOWEVER, that Borrower acknowledges and agrees that an
Event of Default shall exist if Borrower fails to furnish to each Lender such
audited financial statements as provided in SECTION 6.07(a) on or before
January 14, 2000.
SECTION 4. STATUS OF OBLIGATIONS. Borrower hereby confirms and
agrees that all Loans and all other Obligations outstanding under the Credit
Agreement and the other Credit Documents as of the date hereof were duly and
validly created and incurred by Borrower hereunder, that all such outstanding
amounts are owed in accordance with the terms of the Credit Agreement and other
Credit Documents, and that there are no rights of offset, defense, counterclaim,
claim or objection in favor of Borrower arising out of or with respect to any of
the Loans or other Obligations of Borrower to the Agents or the Lenders, and any
such rights of offset, defense, counterclaim, claims or objections have been and
are hereby waived and released by Borrower.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower,
without limiting the representations and warranties provided in the Credit
Agreement, represents and warrants to the Lenders and the Agents as follows:
5.1 The execution, delivery and performance by Borrower of this
Amendment and the other documents being delivered pursuant to this Amendment are
within Borrower's corporate powers, have been duly authorized by all necessary
corporate action (including any necessary shareholder action) and do not and
will not (a) violate any provision of any law, rule or regulation, any judgment,
order or ruling of any court or governmental agency, the articles or certificate
of incorporation or by-laws of Borrower, or any indenture, agreement or other
instrument to which Borrower is a party or by which Borrower or any of its
properties is bound or (b) be in conflict with, result in a breach of, or
constitute with notice or lapse of time or both a default under any such
indenture, agreement or other instrument.
5.2 This Amendment and the other documents being delivered pursuant
to this Amendment constitute the legal, valid and binding obligations of
Borrower, enforceable against Borrower in accordance with their terms.
5.3 After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the Effective Date.
SECTION 6. SURVIVAL. Each of the foregoing representations and
warranties shall be made at and as of the Effective Date. Each of the foregoing
representations and warranties shall constitute a representation and warranty of
Borrower under the Credit Agreement, and it shall be an Event of Default if any
such representation and warranty shall prove to have been incorrect or false in
any material respect at the time when made. Each of the foregoing
representations and warranties shall survive and not be waived by the execution
and delivery of this Amendment or any investigation by the Lenders or the
Agents.
SECTION 7. RATIFICATION OF CREDIT AGREEMENT. Except as expressly
amended herein, all terms, covenants and conditions of the Credit Agreement and
the other Credit Documents shall remain in full force and effect, and the
parties hereto do expressly ratify and
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confirm the Credit Agreement as amended herein. All future references to
the Credit Agreement shall be deemed to refer to the Credit Agreement as
amended hereby.
SECTION 8. RELEASE. In consideration of the amendments and
waivers agreed to and granted by the Lenders pursuant to this Amendment,
Borrower hereby (a) releases, acquits and forever discharges each Agent, the
Co-Agent, each Lender, and each of their respective agents, employees,
officers, partners, directors, servants, representatives, attorneys,
affiliates, successors and assigns (collectively, the "Released Parties")
from any and all liabilities, claims, suits, debts, liens, losses, causes of
action, demands, rights, damages, costs and expenses of any kind, character
or nature whatsoever, known or unknown, fixed or contingent, that Borrower
may have or claim to have against such Lender which might arise out of or be
connected with any act of commission or omission of such Lender existing or
occurring on or prior to the date of this Amendment, including, without
limitation, any claims, liabilities or obligations relating to or arising out
of or in connection with the Credit Agreement, any other Credit Documents or
this Amendment (including, without limitation, arising out of or in
connection with the initiation, negotiation, closing or administration of the
transactions contemplated thereby or related thereto), from the beginning of
time until the execution and delivery of this release and the effectiveness
of this Amendment (the "Released Claims") and (b) agree forever to refrain
from commencing, instituting or prosecuting any lawsuit, action or other
proceeding against the Released Parties with respect to any and all Released
Claims.
SECTION 9. INDEMNITY. In consideration of the amendments and
waivers agreed to and granted by the Lenders pursuant to this Amendment,
Borrower hereby indemnifies each Agent, the Co-Agent and each Lender, and
their respective officers, partners, directors, employees, representatives
and agents from, and hold each of them harmless against, any and all costs,
losses, liabilities, claims, damages or expenses incurred by any of them
(whether or not any of them is designated a party thereto) (an "Indemnitee")
arising out of or by reason of any investigation, litigation or other
proceeding related to this Amendment, the Credit Agreement or any other
Credit Documents or any actual or proposed use of the proceeds of any of the
Loans, including, without limitation, the reasonable fees and disbursements
of counsel (including foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding; PROVIDED, HOWEVER, Borrower
shall not be obligated to indemnify any Indemnitee for any of the foregoing
arising out of such Indemnitee's gross negligence or willful misconduct.
SECTION 10. NO OTHER WAIVER, ETC. Borrower hereby agrees that,
except as otherwise expressly provided in Section 3 hereof, nothing herein
shall constitute a waiver by the Lenders of any Default or Event of Default,
whether known or unknown, which may exist under the Credit Agreement.
Borrower hereby further agrees that no action, inaction or agreement by the
Lenders, including without limitation, any indulgence, waiver, consent or
agreement altering the provisions of the Credit Agreement which may have
occurred with respect to the non-performance of any obligation under the
terms of the Credit Agreement or any portion thereof, or any other matter
relating to the Credit Agreement, shall require or imply any future
indulgence, waiver, or agreement by the Lenders.
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SECTION 11. BINDING NATURE. This Amendment shall be binding upon
and inure to the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
SECTION 12. COSTS AND EXPENSES. Borrower shall be responsible for
the costs and expenses of the Agents in connection with the preparation,
execution and delivery of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the fees
and out-of-pocket expenses of counsel for the Agents with respect thereto.
SECTION 13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 14. ENTIRE UNDERSTANDING. This Amendment sets forth the
entire understanding of the parties with respect to the matters set forth
herein, and shall supersede any prior negotiations or agreements, whether
written or oral, with respect thereto.
SECTION 15. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts and may be delivered by telecopier. Each counterpart so
executed and delivered shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
through their authorized officers as of the date first above written.
VARI-LITE INTERNATIONAL, INC.
By: /s/ Xxxxx X. Trojan
---------------------------------------
Name: Xxxxx X. Trojan
Title: VP-Finance & CFO
SUNTRUST BANK
(FORMERLY SUNTRUST BANK, ATLANTA),
INDIVIDUALLY AND AS AGENT AND COLLATERAL
AGENT
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
PER PRO XXXXX BROTHERS XXXXXXXX &
CO., INDIVIDUALLY AND AS CO-AGENT
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Credit Officer
CHASE BANK OF TEXAS, N.A.
(FORMERLY TEXAS COMMERCE BANK NATIONAL
ASSOCIATION)
By: /s/ M. B. Xxxxxxxx
---------------------------------------
Name: M. B. Xxxxxxxx
Title: V.P.
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COMERICA BANK-TEXAS
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Vice- President
BANK ONE, NA
(FORMERLY THE FIRST NATIONAL BANK OF CHICAGO)
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS
Reference is hereby made to the within and foregoing Amendment No. 6 and
Waiver dated as of December 31, 1999, by and among VARI-LITE INTERNATIONAL,
INC. ("Borrower"), SUNTRUST BANK, ATLANTA, XXXXX BROTHERS XXXXXXXX & CO.,
CHASE BANK OF TEXAS, N.A., COMERICA BANK-TEXAS, N.A., and THE FIRST NATIONAL
BANK OF CHICAGO ("Amendment No. 6"; capitalized terms used herein that are
defined in Amendment No. 6 or in the "Credit Agreement" as defined in
Amendment No. 6 being used herein with the respective meanings assigned to
such capitalized terms in Amendment No. 6 or the Credit Agreement, as the
case may be). The undersigned, each of which is or has become a Guarantor
under the terms of the Guaranty Agreement as provided in the Credit
Agreement, hereby acknowledge and agree that (i) each of the undersigned has
consented to the foregoing Amendment No. 6, (ii) each of the Guaranty
Agreement and the other Credit Documents to which each of the undersigned is
a party shall remain in full force and effect on and after the date hereof,
and (iii) each of the undersigned hereby reaffirms and restates its
obligations and liabilities under the Guaranty Agreement and the other Credit
Documents to which each of the undersigned is a party after giving effect to
Amendment No. 6.
This Acknowledgment and Agreement of Guarantors made and delivered as of
December 31, 1999.
VARI-LITE, INC.
By: /s/ Xxxxx X. Trojan
---------------------------------------
Name: Xxxxx X. Trojan
Title: VP-Finance & CFO
SHOWCO, INC.
By: /s/ Xxxxx X. Trojan
---------------------------------------
Name: Xxxxx X. Trojan
Title: VP-Finance & CFO
IGNITION! CREATIVE GROUP, INC.
By: /s/ Xxxxx X. Trojan
---------------------------------------
Name: Xxxxx X. Trojan
Title: VP-Finance & CFO
I.R. SUB, INC.
(FORMERLY IRIDEON, INC.)
By: /s/ Xxxxx X. Trojan
---------------------------------------
Name: Xxxxx X. Trojan
Title: VP-Finance & CFO
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