EXHIBIT 10.13
WAIVER, dated as of August 10, 2001 (this "WAIVER"), to the Credit Agreement
dated as of January 29, 2001 (as heretofore amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"), among AUDIO VISUAL SERVICES CORPORATION, a
Delaware corporation (the "PARENT"), AUDIO VISUAL SERVICES (NY) CORPORATION, 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 CHASE SECURITIES
INC. as Arranger.
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 to the Borrowers on the terms and subject to the conditions
thereof;
WHEREAS, the Company has advised the Lenders it has failed to achieve
the minimum Consolidated Unadjusted EBITDA required by Section 6.01(a) of the
Credit Agreement for the 12 month period ending June 30, 2001, and has requested
a waiver of any Default or Event of Default arising therefrom;
WHEREAS, the Lenders are willing to agree to waive any such Default
and Event of Default, but only on the terms and subject to the conditions
contained herein;
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 Agents 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. WAIVER.
2.1 WAIVER. The Lenders hereby waive: (i) any Default or Event of Default
under Article VII(c) of the Credit Agreement resulting from the
Borrowers failure to achieve the minimum Consolidated Unadjusted
EBITDA required by Section 6.01(a) of the Credit Agreement for the
period of four consecutive fiscal quarters ending on June 30, 2001;
and (ii) any Default or Event of Default under Article VII(e) of the
Credit Agreement resulting from the occurrence of an event of default
under the Existing Credit Agreement arising on account of the
Borrowers failure to achieve the minimum "Consolidated Unadjusted
EBITDA" (as defined in the Existing Credit Agreement) required by
Section 7.01(c) of the Existing Credit Agreement for the period of
four consecutive fiscal quarters ending on June 30, 2001.
1
MISCELLANEOUS.
2.2 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving effect to
this Waiver, the Borrowers hereby represent and warrant that all
representations and warranties contained in Article III of 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 Waiver.
2.3 CONDITIONS TO EFFECTIVENESS OF THIS WAIVER. This Waiver shall be
effective as of the date first set forth above (the "WAIVER EFFECTIVE
DATE") upon the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of counterparts hereof duly
executed and delivered by the Borrowers and the Majority Lenders
and the Revolving Credit Exposure and consented to by the Loan
Parties (other than the Borrowers);
(b) the payment by the Borrowers of the costs and expenses of the
Administrative Agent owing under Section 9.05 of the Credit
Agreement and for which invoices have been submitted; and
(c) the delivery to the Administrative Agent and the Lenders of (i)
the financial statements of the Parent for the financial quarter
ended June 30, 2001 in accordance with Section 5.01(b) of the
Credit Agreement; and (ii) a certificate from the Chief Financial
Officer or Chief Executive Officer of the Parent, delivered in
accordance with Section 5.01(e) of the Credit Agreement and
demonstrating that Consolidated Unadjusted EBITDA for the 12
month period ending on June 30, 2001 was not less than
$47,000,000.
2.4 LIMITED EFFECT. Except as expressly waived by this Waiver, the Credit
Agreement is and shall continue to be in full force and effect in
accordance with its terms, and this Waiver shall not constitute the
Lenders's consent or indicate their willingness to consent to any
other amendment, modification or waiver of the Credit Agreement or the
other Loan Documents.
2.5 GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
2.6 COUNTERPARTS. This Waiver 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 Waiver may be delivered
by facsimile transmission of the relevant signature pages hereof.
2
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed
and delivered by their respective duly authorized officers as of the date first
above written.
AUDIO VISUAL SERVICES CORPORATION
BY: /s/: DIGBY X. XXXXXX
------------------------------------------------
Name: Digby X. Xxxxxx
Title: Director, President, COO,
Acting CFO and Treasurer
AUDIO VISUAL SERVICES (NY) CORPORATION
BY: /s/: DIGBY X. XXXXXX
------------------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President,
CFO and Treasurer
THE CHASE MANHATTAN BANK AS ADMINISTRATIVE AGENT
BY: /s/: XXXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
3
BBT FUND, L.P.
BY: BBT GENPAR, L.P., ITS GENERAL PARTNER
BY: BBT-FW, INC., ITS GENERAL PARTNER
BY: /s/: XXXXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
HALCYON RESTRUCTURING FUND, L.P.
BY: /s/: XXXXX X. XXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
BY: /s/: XXXX XXXXXXX
------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
NOMURA SPECIAL SITUATIONS
INVESTMENT TRUST
By: Wilmington Trust Company
BY: /s/: Illegible
------------------------------------------------
Name: Illegible
Title: Vice President
4
XXX-XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
BY: /s/: XXXXXX X. XXXXXX
------------------------------------------------
Name: XXXXXX X. Xxxxxx
Title: Principal
5
Each of the undersigned hereby consents to the foregoing 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
Waiver.
AVSC INTELLECTUAL PROPERTY MANAGEMENT, INC.
BY: /s/: DIGBY X. XXXXXX
-------------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President,
CFO and Treasurer
AUDIO VISUAL SERVICES GROUP, INC.
BY: /s/: DIGBY X. XXXXXX
-------------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
and Treasurer
VISUAL ACTION HOLDINGS INC.
BY: /s/: DIGBY X. XXXXXX
-------------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
and Treasurer
HRI, V.I., INC.
BY: /s/: DIGBY X. XXXXXX
-------------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
and Treasurer
6
