EXHIBIT 10.15
WAIVER, dated as of September 10, 2001 (this "WAIVER"), under 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 :
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WHEREAS, the Borrowers, the Lenders and the Administrative Agent 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;
WHEREAS, the Company, the Lenders and the Administrative Agent are
requesting the implementation of a restructuring of the Company's Indebtedness
and equity structure;
WHEREAS, in order to assist with the implementation of the
restructuring, the Company has requested a waiver of any Default or Event of
Default arising from any failure of the Borrowers to achieve the minimum
Consolidated Unadjusted EBITDA required by Section 6.01(a) of the Credit
Agreement for the 12 month period ending September 30, 2001; and
WHEREAS, the Lenders are willing to agree to the foregoing requests,
but only on the terms and subject to the conditions of this Waiver 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 September 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
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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 September 30, 2001.
SECTION 3. ACKNOWLEDGMENT/RELEASE.
3.1 COLLATERAL. Each Loan Party ratifies and reaffirms the validity
and enforceability (without defense, counterclaim or offset of any kind) of the
liens and security interests granted to secure any of the Obligations by such
Loan Party to the Administrative Agent, for the benefit of the Lenders, pursuant
to the Security Documents to which such Loan Party is a party. Each Loan Party
acknowledges and agrees that all such liens and security interests granted by
such Loan Party shall continue to secure the Obligations from and after the date
hereof.
3.2 RELEASE. Each Loan Party acknowledges and agrees that such Loan
Party has no claim, right or cause of action of any kind against any Lender, the
Administrative Agent or any of such Lender's or the Administrative Agent's
present or former subsidiaries, Affiliates, officers, directors, employees,
attorneys or other representatives or agents (collectively with their respective
successors and assigns, the "LENDER PARTIES") in connection with the
Obligations, the Credit Agreement and the other Loan Documents, or the
transactions contemplated hereby or thereby. Each Loan Party unconditionally,
freely, voluntarily and, after consultation with counsel and becoming fully and
adequately informed as to the relevant facts, circumstances and consequences,
releases, waives and forever discharges (and further agrees not to allege, claim
or pursue) any and all claims, rights, liabilities, causes of action,
counterclaims or defenses of any kind whatsoever, in contract or in tort, in law
or in equity, whether known or unknown, direct or derivative, which such Loan
Party or any predecessor, might otherwise have or may have against any Lender
Party on account of any conduct, condition, act, omission, event, contract,
liability, obligation, demand, covenant, promise, indebtedness, claim, right,
cause of action, suit, damage, defense, circumstance or matter of any kind
whatsoever which existed, arose or occurred at any time prior to the date hereof
in connection with the Obligations, the Credit Agreement and the other Loan
Documents.
SECTION 4. MISCELLANEOUS.
4.1 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. (a) After giving
effect to this Waiver, 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 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.
(b) The Borrowers further represent and warrant that as of the date
hereof, the Borrowers and the other Loan Parties are truly and justly indebted
(including contingent liabilities in respect of Letters of Credit) to the Agents
and the Lenders pursuant to the Loan Documents, in the principal amount of
$16,000,000.00 plus accrued interest, fees and other amounts payable pursuant to
the Loan Documents, without defense, counterclaim or offset of any kind.
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4.2 CONDITIONS TO EFFECTIVENESS OF THIS WAIVER. This Waiver 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 each Lender and consented to by the
Loan Parties (other than the Borrowers);
(b) receipt by the Administrative Agent of the Seventh Amendment and
Waiver to the Existing Credit Agreement, duly executed and delivered by the
Borrowers, each Lender and consented to by the Loan Parties (as such capitalized
terms are defined in the Existing Credit Agreement); and
(c) 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.
4.3 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'
consent or indicate their willingness to consent to any other amendment,
modification or waiver of the Credit Agreement or the other Loan Documents,
including without limitation, any amendment, modification or waiver of any
section amended or waived pursuant to this Waiver for any other date or time
period.
4.4 GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4.5 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.
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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
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Name: Digby X. Xxxxxx
Title: President & COO
AUDIO VISUAL SERVICES (NY)
CORPORATION
By: /s/ DIGBY X. XXXXXX
----------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
BBT FUND, L.P.
By: BBT GENPAR, L.P., Its General Partner
By: BBT-FW, INC., Its General Partner
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
HALCYON RESTRUCTURING FUND, L.P.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Principal
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HIGHLAND LEGACY LIMITED
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital Management, X.X.
XXXXXX SPECIAL SITUATIONS
INVESTMENT TRUST
By: /s/ XXXXX X. XXXXXXX, XX.
----------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Vice President
Wilmington Trust Company
not in its individual capacity
but solely as Owner Trustee
XXX-XXXXXX SENIOR INCOME TRUST
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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 & COO
AUDIO VISUAL SERVICES GROUP, INC.
By: /s/ DIGBY X. XXXXXX
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Name: Digby X. Xxxxxx
Title: Executive Vice President & COO
VISUAL ACTION HOLDINGS INC.
By: /s/ DIGBY X. XXXXXX
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Name: Digby X. Xxxxxx
Title: Executive Vice President
HRI, V.I., INC.
By: /s/ DIGBY X. XXXXXX
-------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
