EXECUTION VERSION
SECOND AMENDMENT AND WAIVER, dated as of December 18, 1998,
(this "Second Amendment") to the Credit Agreement dated as of October 28, 1997
(as heretofore amended, supplemented or otherwise modified, the "Credit
Agreement"), among CARIBINER INTERNATIONAL, INC., a Delaware corporation (the
"Parent"), CARIBINER, INC., a New York corporation (the "Company"; together with
the Parent, the "Borrowers"), the several banks and other financial institutions
from time to time parties thereto (the "Lenders"), THE CHASE MANHATTAN BANK, as
Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent") and XXXXXXX XXXXX CAPITAL CORPORATION, as Syndication Agent (in such
capacity, the "Syndication Agent"; collectively with the Administrative Agent,
the "Agents").
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders and the Agents are parties
to the Credit Agreement, pursuant to which the Lenders have agreed to make, and
have made, certain loans and other extensions of credit to the Borrowers on the
terms and subject to the conditions thereof; and
WHEREAS, the Borrowers have requested that certain provisions
of the Credit Agreement be amended and waived; and
WHEREAS, the Lenders are willing to agree to such requested
amendments and waivers on the terms and conditions provided for in this Second
Amendment.
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Borrowers, the Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Credit Agreement.
SECTION 2. AMENDMENTS.
2.1 Amendments to Section 1.01. The definitions of "Asset
Sale" and "Recovery Event" set forth in Section 1.01 of the Credit Agreement
shall be amended by deleting from each such definition the amount "$10,000,000"
and substituting in lieu thereof the following:
"(i) for the fiscal year ended September 30, 1998, $10,000,000
and (ii) for any fiscal year ended thereafter, $5,000,000."
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2.2 Amendments to Section 2.06 (Optional Prepayments;
Mandatory Prepayments; Termination or Mandatory Reduction of Commitments).
(a) Section 2.06 of the Credit Agreement is hereby amended by deleting paragraph
(i) of said Section in its entirety and substituting therefor the following new
paragraph (i):
"(i) Unless the Majority Lenders and the Majority Term Loan
Lenders shall otherwise agree, if on any date the Parent or
any of its Subsidiaries receives Net Cash Proceeds from any
Asset Sale, other Disposition or Recovery Event, then the
Borrowers shall apply an amount equal to 100% of such Net Cash
Proceeds toward the prepayment of the Term Loans on such date.
Such prepayments shall be applied to the remaining scheduled
Term Loan installments pro rata according to the outstanding
amounts of such scheduled installments, provided that, if any
prepayment would have the effect of reducing the outstanding
principal amount of the Term Loans to $150,000,000 or less,
then (A) an aggregate of $25,000,000 of such prepayment and
any subsequent prepayments shall be applied to the scheduled
Term Loan installments in order of maturity and (B) the
balance, if any, of such prepayments shall be applied to the
remaining scheduled Term Loan installments, pro rata according
to the outstanding amounts of such scheduled installments."
(b) Section 2.06 of the Credit Agreement is hereby further
amended by deleting the word "Prepayments" from paragraph (1)
of said Section and substituting therefor the words,
"Except to the extent expressly provided otherwise in
paragraph (i) above, prepayments."
2.3 Amendment to Section 5.06 (Conditions Precedent to Each
Loan for Future Material Acquisition). Section 5.06 of the Credit Agreement is
hereby amended by adding the following new paragraph (c) to the end of said
Section:
"(c) Consolidated Leverage Ratio. After giving effect to the
requested Loan, the Consolidated Leverage Ratio shall be less
than 3.50 to 1.00 (it being understood that for purposes of
determining the Consolidated Leverage Ratio for this
condition, Consolidated Funded Debt shall be calculated as of
the date of, and after giving effect to, the incurrence by the
Borrowers and their Subsidiaries of any Indebtedness on the
date of the requested Loan) and, unless the Majority Lenders
consent, the Future Material Acquisition (together with all
other Future Material Acquisitions in any fiscal year of
the Borrowers) does not require cash consideration in
excess of $5,000,000 in such fiscal year."
2.4 Amendments to Section 7.01 (Financial Condition
Covenants). (a) Section 7.01 of the Credit Agreement is hereby amended by
deleting paragraph (a) of said Section in its entirety and substituting therefor
the following new paragraph (a):
"(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio on the last day of any fiscal quarter ending
during any period set forth below to be greater than the ratio
set forth below opposite the period in which such fiscal
quarter ends:
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Period Ratio
------ -----
9/30/98 - 6/29/99 6.50 to 1.00
6/30/99 - 9/29/99 5.00 to 1.00
9/30/99 - 12/30/99 4.25 to 1.00
12/31/99 - 3/30/00 4.00 to 1.00
3/31/00 - 3/30/01 3.75 to 1.00
3/31/01 - 3/30/02 3.50 to 1.00
3/31/02 - 3/30/03 3.25 to 1.00
3/31/03 - thereafter 3.00 to 1.00
(b) Section 7.01 of the Credit Agreement is hereby further
amended by deleting paragraph (b) of said Section in its entirety and
substituting therefor the following new paragraph (b):
"(b) Ratio of Consolidated EBITDA less Capital Expenditures to
Consolidated Cash Interest Expense. Permit the ratio of (i)
Consolidated EBITDA less Capital Expenditures for any period
of four consecutive fiscal quarters ending during any period
set forth below to (ii) Consolidated Cash Interest Expense for
such period, to be less than the ratio set forth below
opposite such period:
Period Ratio
------ -----
9/30/98 - 3/30/99 0.70 to 1.00
3/31/99 - 6/29/99 0.75 to 1.00
6/30/99 - 9/29/99 1.25 to 1.00
9/30/99 - 3/30/00 1.50 to 1.00
3/31/00 - 3/30/01 1.75 to 1.00
3/31/01 - thereafter 2.00 to 1.00
2.5 Amendment to Section 7.07 (Limitation on Investments,
Loans and Advances). Section 7.07 of the Credit Agreement is hereby amended by
deleting paragraph (e) of said Section in its entirety and substituting therefor
the following new paragraph (e):
"(e) Future Acquisitions by the Parent or any other Loan
Party; provided that (i) no Event of Default has occurred and
is continuing at the time of, or would result from, the
consummation of such Future Acquisition, (ii) the Consolidated
Leverage Ratio is less than 3.50 to 1.00 on the Acquisition
Date related to such Future Acquisition (it being understood
for purposes of determining the Consolidated Leverage Ratio,
Consolidated Funded Debt shall be calculated as of such
Acquisition Date and after giving effect to the incurrence by
the Borrowers and their Subsidiaries of any Indebtedness on
such
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Acquisition Date) and (iii) any Future Acquisitions or
Investments which require, individually or in the aggregate,
cash consideration in excess of $5,000,000 in any fiscal year
of the Borrowers shall not be made without the prior written
consent of the Majority Lenders after their satisfactory
review (which they shall promptly undertake after notice by
the Borrower), in their reasonable discretion, of documents
required pursuant to Section 5.06(b).
2.6 Amendment to Annex A to the Credit Agreement. Annex A to
the Credit Agreement is hereby amended by deleting said Annex in its entirety
and substituting therefor the "Annex A" attached hereto as Exhibit 1.
2.7 Amendment to Schedule 1 to the Credit Agreement. Schedule
1 to the Credit Agreement is hereby amended by deleting said Schedule in its
entirety and substituting therefor the "Schedule 1" attached hereto as Exhibit
2.
SECTION 4. WAIVER.
The Lenders hereby waive any Default or Event of Default that
resulted from the Borrowers failure to maintain the Consolidated Leverage Ratio
required by Section 7.01(a) of the Credit Agreement, or the ratio of
Consolidated EBITDA less Capital Expenditures to Consolidated Cash Interest
Expense required by Section 7.01(b) of the Credit Agreement, in each case for
the fiscal quarter ending September 30, 1998.
SECTION 5. MISCELLANEOUS.
5.1. Representations and Warranties; No Default. After giving
effect to this Second Amendment, the Borrowers hereby represent and warrant that
all representations and warranties contained in the Credit Agreement are true
and correct in all material respects as of the date hereof (unless stated to
relate to a specific earlier date, in which case, such representations and
warranties shall be true and correct in all material respects as of such earlier
date) and that no Default or Event of Default shall have occurred and be
continuing or would result from the execution and delivery of this Second
Amendment.
5.2. Conditions to Effectiveness of this Second Amendment.
This Second Amendment shall be effective as of the date first set forth above
upon the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of counterparts hereof
duly executed and delivered by the Borrowers and Majority Lenders and consented
to by the Loan Parties (other than the Borrowers);
(b) the payment by the Borrowers to the Administrative Agent,
for the benefit of each Lender delivering its duly executed counterpart hereof
on or prior to December 18, 1998, of a fee equal to .20% of the aggregate
principal amount of the Revolving Credit
5
Commitment and outstanding Term Loans of such Lender, after giving effect to the
amendments effected hereby; and
(c) the payment by the Borrowers of the costs and expenses of
the Administrative Agent owing under Section 10.05 of the Credit Agreement and
for which invoices have been submitted.
5.3. Limited Effect. Except as expressly amended by this
Second Amendment, the Credit Agreement is and shall continue to be in full force
and effect in accordance with its terms, and this Second Amendment shall not
constitute the Lenders' consent or indicate their willingness to consent to any
other amendment, modification or waiver of the Credit Agreement or the other
Loan Documents.
5.4 Counterparts. This Second Amendment may be executed by the
parties hereto on one or more counterparts, and all of such counterparts shall
be deemed to constitute one and the same instrument. This Second Amendment may
be delivered by facsimile transmission of the relevant signature pages hereof.
5.5 GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
CARIBINER INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CARIBINER, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer and
Treasurer
7
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
individually and as Syndication Agent
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx XxXxxxxx
-----------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
0
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxx X. Xxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Relationship Manager
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
9
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
10
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager, Global Syndications
SUMMIT BANK
By:
-----------------------------------
Name:
Title:
BANK OF HAWAII
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
11
BANK POLSKA KASA OPIEKI S.A.
PEKAO S.A. GROUP, NEW YORK BRANCH
By: /s/ X.X. Xxxxx
-----------------------------------
Name: X.X. Xxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President& Director
XXX XXXXXX SENIOR INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
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Each of the undersigned hereby consents to the foregoing
Second Amendment and Waiver and hereby confirms, reaffirms and restates that its
obligations under or in respect of the Credit Agreement and the documents
related thereto to which it is a party are and shall remain in full force and
effect after giving effect to the foregoing Second Amendment and Waiver.
CARIBINER INTELLECTUAL
PROPERTY MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Treasurer
CARIBINER AUDIO VISUAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Chief
Financial Officer and Treasurer
HRI, V.I., INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Treasurer
13
VISUAL ACTION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Treasurer
CARIBINER SERVICES LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
CARIBINER EUROPE LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
VISUAL ACTION HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
Annex A
Leverage Grid
-----------------------------------------------------------------------------------------------------------------------------------
If the If the If the If the If the If the
Consolidated Consolidated Consolidated Consolidated Consolidated Consolidated
Leverage Ratio Leverage Leverage Ratio Leverage Ratio Leverage Ratio Leveraee Ratio
is less than Ratio is less is less than 3.0 is less than 3.5 is less than 4.0 is greater than
2.0 to 1.0 than 2.5 to 1.0 to 1.0 but to 1.0 but to 1.0 but or equal to 4.0
but greater greater greater greater than or to 1.0
than or equal than or equal than or equal equal to
to 2.0 to 1.0 to 2.5 to 1.0 to 3.0 to 1.0 3.5 to 1.0
-----------------------------------------------------------------------------------------------------------------------------------
Commitment 37.5 bps 37.5 bps 50.0 bps 50.0 bps 50.0 bps 50.0 bps
Fee
-----------------------------------------------------------------------------------------------------------------------------------
Eurodollar 125.0 bps 150.0 bps 175.0 bps 200.0 bps 250.0 bps 275.0 bps
Applicable
Margin
-----------------------------------------------------------------------------------------------------------------------------------
ABR 25.0 bps 50.0 bps 75.0 bps 100.0 bps 150.0 bps 175.0 bps
Applicable
Margin
-----------------------------------------------------------------------------------------------------------------------------------
; provided, that beginning June 30, 1999, if the outstanding principal amount of the Term Loans has not been reduced to $150,000,000
or less from the application of the Net Cash Proceeds of Asset Sales, Recovery Events, other Dispositions or refinancings on terms
acceptable to the Majority Lenders or otherwise (but in no event from the proceeds of Revolving Credit Loans) (the date of such
reduction, the "Term Loan Reduction Date"), then (i) from and after June 30, 1999 until the earlier to occur of (x) the first
Adjustment Date (as defined below) to occur thereafter and (y) the Term Loan Reduction Date, the Applicable Margin for each Type of
Loan shall be increased to .50% above the rate which is in effect on June 30, 1999 pursuant to the pricing grid set forth above, and
the Commitment Fee Rate shall be .50% and (ii) from and after the first Adjustment Date to occur after June 30, 1999 and until the
Term Loan Reduction Date the following Pricing Grid shall apply:
-----------------------------------------------------------------------------------------------------------------------------------
If the If the If the If the If the If the
Consolidated Consolidated Consolidated Consolidated Consolidated Consolidated
Leverage Ratio Leverage Leverage Leverage Ratio Leverage Ratio Leverage Ratio
is less than 2.0 Ratio is less Ratio is less is less than 3.5 is less than 4.0 is greater than
to 1.0 than 2.5 to 1.0 than 3.0 to 1.0 to 1.0 but to 1.0 but or equal to 4.0
but greater than but greater than greater than or greater than or to 1.0
or equal to 2.0 or equal to 2.5 equal to 3.0 to equal to
to 1.0 to 1.0 1.0 3.5 to 1.0
-----------------------------------------------------------------------------------------------------------------------------------
Commitment 50.0 bps 50.0 bps 50.0 bps 50.0 bps 50.0 bps 50.0 bps
Fee
-----------------------------------------------------------------------------------------------------------------------------------
Eurodollar 175.0 bps 200.0 bps 225.0 bps 250.0 bps 300.0 bps 325.0 bps
Applicable
Margin
-----------------------------------------------------------------------------------------------------------------------------------
ABR 75.0 bps 100.0 bps 125.0 bps 150.0 bps 200.0 bps 225.O bps
Applicable
Margin
-----------------------------------------------------------------------------------------------------------------------------------
On the effective date of the Second Amendment, the Commitment Fee Rate shall be 50.0 bps, the Applicable Margin for Eurodollar
Loans shall be 275.0 bps and the Applicable Margin for ABR Loans shall be 175.0 bps.
Beginning with the fiscal quarter ending December 31, 1998 changes in the Applicable Margin or in the Commitment Fee Rate resulting
from changes in the Consolidated Leverage Ratio shall become effective on the date (the "Adiustment Date") on which financial
statements are delivered to the Lenders pursuant to Section 6.01 (but in any event not later than the 50th day after the end of each
of the first three quarterly periods of each fiscal year or the 120th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified above, then, until such financial statements are delivered, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.0 to 1. Each determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal quarters of the Parent and its Subsidiaries ending at the end of
the period covered by the relevant financial statements.
SCHEDULE 1
Revolving Credit Term Loan Total
Lender Commitment Commitment Commitment
-------------------------- ---------------- ---------------- --------------
Bank Polska $2,272,727.28 $2,036,363.63 $4,309,090.91
Bank of America Illinois $4,770,992.45 $4,274,809.16 $9,045,801.61
Bank of Hawaii $4,770,992.37 $4,274,809.16 $9,045,801.53
Bank of New York $21,478,140.18 $14,244,413.60 $35,722,553.78
Bank of Nova Scotia $19,318,181.82 $17,309,090.91 $36,627,272.73
BankBoston, N.A. $19,318,181.82 $17,309,090.91 $36,627,272.73
Bankers Trust Company $23,863,636.37 $21,381,818.18 $45,245,454.55
Chase Manhattan Bank $30,681,818.18 $27,490,909.10 $58,172,727.28
Credit Agricole Indosuez $9,090,090.09 $8,145,454.94 $17,236,364.03
First Union National Bank $11,476,405.28 $15,282,859.12 $26,759,264.40
N.C.
Fleet Bank $15,909,090.91 $14,254,545.46 $30,163,636.37
Xxxxxxx Lynch, Pierce, $30,681,818.18 $27,490,909.09 $58,172,727.27
Xxxxxx & Xxxxx
Incorporated
Mitsubishi Trust & Banking
Corporation $9,090,909.09 $8,145,454.54 $17,236,363.63
NationsBank, NA $21,816,446.92 $19,547,536.43 $41,363,983.35
PNC Bank, N.A. $19,318,181.82 $8,349,090.91 $27,667,272.73
Royal Bank of Canada $1,596,113.73 $1,430,117.98 $3,026,231.71
Summit Bank $4,545,454.54 $4,072,727.28 $8,618,181.82
Xxx Xxxxxx American $0.00 $3,960,000.00 $3,960,000.00
Capital XXXX
Xxx Xxxxxx Amer. Capital $0.00 $5,000,000.00 $5,000,000.00
Sr. Inc. Trust
Total $250,000,000.00 $224,000,000.40 $474,000,000.40
