AMENDMENT NO. 1 TO FINANCING AGREEMENT
AMENDMENT NO. 1
TO
FINANCING AGREEMENT
This AMENDMENT NO. 1 TO FINANCING AGREEMENT (this “Amendment”), made as of March 30, 2001, between FIRSTAR BANK, NATIONAL ASSOCIATION, a national banking association (“Bank”) and VARI-LITE, INC., a Delaware corporation (“Borrower”),
WITNESSETH:
WHEREAS, Borrower and Bank have entered into that certain Financing Agreement, dated as of December 29, 2000 (the “Financing Agreement”), pursuant to which Bank has made certain loans and financial accommodations available to Borrower; and
WHEREAS, Borrower and Bank desire to amend the Financing Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Bank and Borrower agree as follows:
1. DEFINED TERMS.
Each defined term used herein and not otherwise defined herein has the meaning ascribed to such term in the Financing Agreement.
2. AMENDMENT TO FINANCING AGREEMENT.
The Financing Agreement is amended, effective as of the date of this Agreement, as follows:
2.1 Amendment to Exhibit J. Exhibit J to the Financing Agreement is amended in its entirety to read as set forth on Exhibit J attached hereto and by reference made a part hereof.
2.2 Amendment to Section 8.7 of the Financing Agreement—Certified Quarterly Financial Statements. Section 8.7 of the Financing Agreement is amended in its entirety to read as follows:
Section 8.7 — Certified Quarterly Financial Statements.
Promptly when available and in any event not later than forty-five (45) days after the end of each quarter, Borrower shall furnish to Bank quarterly financial statements, on a consolidated basis, showing International’s financial condition and results of International's operations for the periods of time covered by such statements in such detail as Bank may from time to time require, prepared in accordance with generally accepted accounting principles consistently applied and containing all disclosures required to fully and accurately present the financial position and results of International and to make such statements not misleading under the circumstances, and in each instance certified by the chief financial officer or other responsible officer of International as being filed with the Securities and Exchange Commission. Said statements shall include: (i) a comparison prepared by International of its projected financial position and results of operations of International provided for in Section 8.6 hereof with the actual financial position and results of operations of International and an explanation of any variations between them; and (ii) a comparison between actual calculated results and the covenanted results for each of the Financial Covenants contained in Exhibit J attached hereto and incorporated herein by reference.
3. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Bank as follows:
3.1 The Amendment. This Amendment has been duly and validly executed by an authorized executive officer of Borrower and constitutes the legal, valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms.
3.2 Financing Agreement. The Financing Agreement as amended by this Amendment remains in full force and effect and remains the valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms. Borrower hereby ratifies and confirms the Financing Agreement as amended by this Amendment.
3.3 Nonwaiver. Neither the execution, delivery, performance or effectiveness of this Amendment shall operate nor be deemed to be nor construed as a waiver (i) of any right, power or remedy of Bank under the Financing Agreement, nor (ii) of any term, provision, representation, warranty or covenant contained in the Financing Agreement or any other documentation executed in connection therewith. Further, none of the provisions of this Amendment shall constitute, or be deemed to be or construed as, a waiver of any Event of Default under the Financing Agreement as amended by this Amendment.
3.4 Reference to and Effect on the Financing Agreement. Upon the effectiveness of this Amendment, each reference in the Financing Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Financing Agreement as amended hereby, and each reference to the Financing Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Financing Agreement shall mean and be a reference to the Financing Agreement as amended hereby.
3.5 Claims and Defenses. As of the date of this Amendment, Borrower has no defenses, claims, counterclaims or setoffs with respect to the Financing Agreement or its Obligations thereunder or with respect to any actions of the Bank or any of its officers, directors, shareholders, employees, agents or attorneys, and Borrower irrevocably and absolutely waives any such defenses, claims, counterclaims and setoffs and releases the Bank and each of its officers, directors, shareholders, employees, agents and attorneys from the same.
4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements set forth herein, the effectiveness of this Amendment is subject to the each of the following conditions precedent:
4.1 Amendment No. 1 to Financing Agreement. Bank shall have received an original counterpart of this Amendment No. 1 to Financing Agreement, executed and delivered by a duly authorized officer of Borrower.
4.2 Acknowledgment of Guarantor. Bank shall have received an original of the attached Acknowledgment of Vari-Lite International, Inc., a Delaware corporation, executed and delivered by a duly authorized officer of Vari-Lite International, Inc..
4.3 No Material Adverse Change. There shall have occurred no material and adverse change in the Borrower’s assets, liabilities or financial condition since the date of the last Financials delivered by Borrower to Bank nor shall there have been any material damage to or loss of any of Borrower’s assets or properties since such date.
5. SECTION MISCELLANEOUS.
5.1 Governing Law. This Amendment has been delivered and accepted at and shall be deemed to have been made at Cleveland, Ohio. This Amendment shall be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State of Ohio, without regard to principles of conflict of law, and all other laws of mandatory application.
5.2 Severability. Each provision of this Amendment shall be interpreted in such manner as to be valid under applicable law, but if any provision hereof shall be invalid under applicable law, such provision shall be ineffective to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions hereof.
5.3 Counterparts. This Amendment may be executed in one or more counterparts, each of which, when taken together, shall constitute but one and the same agreement.
IN
WITNESS WHEREOF, Borrower has caused this Amendment No. 1 to Financing
Agreement to be duly executed and delivered by its duly authorized officer as
of the date first above written.
| Signed and acknowledged in the presence of: | VARI-LITE, INC. | |||
|
|
By: |
|
||
| Name: |
|
|||
| Its: |
|
|||
|
|
||||
| Name: |
|
|||
| STATE OF |
|
) |
| )ss: | ||
| COUNTY OF |
|
) |
The foregoing instrument was acknowledged before me this ___ day of May, 2001, by _______________, the ___________________ of Vari-Lite, Inc., a Delaware corporation, on behalf of the corporation.
| Notary Public |
| Accepted at Cleveland,
Ohio, Effective as of March 30, 2001.FIRSTAR BANK, NATIONAL ASSOCIATION |
||
| By: |
|
|
| Its: |
|
|
ACKNOWLEDGMENT OF GUARANTOR
The undersigned, Vari-Lite International, Inc., a Delaware corporation, having guaranteed all of the obligations of Vari-Lite, Inc. to Firstar Bank, National Association (“Bank”), hereby acknowledges and agrees, effective as of March 30, 2001, to the terms of the foregoing Amendment No. 1 to Financing Agreement. The undersigned represents and warrants to Bank that the Guaranty executed and delivered by the undersigned to Bank, dated as of December 29, 2000, remains the valid and binding obligation of the undersigned, enforceable against it in accordance with its terms.
| VARI-LITE INTERNATIONAL, INC. | ||||
| By: |
|
|||
| Its: |
|
|||
| STATE OF |
|
) | ||
| )ss: | ||||
| COUNTY OF |
|
) | ||
The foregoing instrument was acknowledged before me this ___ day of May, 2001, by ___________________, the ________________ of VARI-LITE INTERNATIONAL, INC., a Delaware corporation, on behalf of the company.
|
|
|
| Notary Public |
Exhibit J
Financial Covenants
Financial Covenants. Borrower agrees that it shall:
| (A) | Net
Capital Expenditures. Not make nor permit International to
make Net Capital Expenditures in an
aggregate amount exceeding $9,000,000 for any fiscal year. |
| (B) | Earnings Before Interest, Taxes, Depreciation and Amortization. Not permit International’s Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA") to be less than the following amounts for the following periods: |
| EBIDTA | Period |
|
|
|
| $ 2,931,000 | 10/01/00 - 12/31/00 |
| $ 6,234,000 | 10/01/00 - 03/31/01 |
| $ 9,875,000 | 10/01/00 - 06/30/01 |
| $14,532,000 | 10/01/00 - 09/30/01 |
| $16,123,000 | 01/01/01 - 12/31/01 |
| $16,272,000 | 04/01/01 - 03/31/02 |
| $15,834,000 | 07/01/01 - 06/30/02 |
| $15,447,000 | 10/01/01 - 09/30/02 |
| $16,314,000 | 01/01/02 - 12/31/02 |
| $16,882,000 | 04/01/02 - 03/31/03 |
| $17,385,000 | 07/01/02 - 06/30/03 |
| $18,123,000 | 10/01/02 - 09/30/03 |
| (C) | Net Worth. Not permit International’s Net Worth to be less than the following amounts as of the following dates: |
| Net Date | Period |
|
|
|
| $45,000,000 | 12/31/00 |
| $45,000,000 | 03/31/01 |
| $45,000,000 | 06/30/01 |
| $45,000,000 | 09/30/01 |
| $46,000,000 | 12/31/01 |
| $46,000,000 | 03/31/02 |
| $46,000,000 | 06/30/02 |
| $46,000,000 | 09/30/02 |
| $47,750,000 | 12/31/02 |
| $47,750,000 | 03/31/03 |
| $47,750,000 | 06/30/03 |
| $47,750,000 | 09/30/03 |
| (D) | Maximum Debt. Not permit International’s Total Funded Indebtedness to exceed the following amounts at any time during the following periods: |
| Total Funded Indebtedness | Period |
|
|
|
| $29,000,000 | 01/01/01 - 06/30/01 |
| $27,000,000 | 07/01/01 - 09/30/01 |
| $25,000,000 | 10/01/01 - 12/31/01 |
| $25,000,000 | 01/01/02 - 03/31/02 |
| $25,000,000 | 04/01/02 - 06/30/02 |
| $25,000,000 | 07/01/02 - 09/30/02 |
| $25,000,000 | 10/01/02 - 12/31/02 |
| $27,000,000 | 01/01/03 - 03/31/03 |
| $27,000,000 | 04/01/03 - 06/30/03 |
| $27,000,000 | 07/01/03 - 09/30/03 |
| $27,000,000 | at any time thereafter |
| (E) | Leverage Ratio. Not permit International’s Leverage Ratio to exceed the following ratios as of the following dates: |
| Leverage Ratio | Date |
|
|
|
| 4.65 to 1 | 03/31/01 |
| 2.73 to 1 | 06/30/01 |
| 2.25 to 1 | 09/30/01 |
| 2.25 to 1 | 12/31/01 |
| 2.25 to 1 | 03/31/02 |
| 2.00 to 1 | 06/30/02 |
| 2.00 to 1 | 09/30/02 |
| 1.80 to 1 | 12/31/02 |
| 1.75 to 1 | 03/31/03 |
| 1.65 to 1 | 06/30/03 |
| 1.65 to 1 | 09/30/03 |
| (F) | Total Debt Service Ratio. Not permit International’s Total Debt Service Ratio to be less than the following ratios as of the following dates: |
| Total Debt Service Ratio | Date |
|
|
|
| 1.05 to 1 | 09/30/01 |
| 1.10 to 1 | 12/31/01 |
| 1.10 to 1 | 03/31/02 |
| 1.10 to 1 | 06/30/02 |
| 1.10 to 1 | 09/30/02 |
| 1.20 to 1 | 12/31/02 |
| 1.20 to 1 | 03/31/03 |
| 1.20 to 1 | 06/30/03 |
| 1.20 to 1 | 09/30/03 |
| II. | Definitions |
|||
| (A) | The
term "Net Capital Expenditures" for purposes of this Exhibit
J shall mean the sum of (a)
International’s consolidated capital expenditures (including, but not by way
of limitation, expenditures for fixed assets or leases capitalized or
required to be capitalized on International’s consolidated books by purchase,
lease-purchase agreement, option or otherwise), minus (b) the net book value of capital
assets previously sold and replaced by such capital expenditures. |
|||
| (B) | The
term "Earnings Before Interest, Taxes, Depreciation, and Amortization"
or "EBITDA"for purposes of this Exhibit J
shall mean International’s consolidated earnings from operations before
income taxes and interest income or expense plus depreciation, plus
amortization of all non-cash charges, all as determined in accordance with
generally accepted accounting principles, and shall not include any gains or
losses from the sale of assets outside the normal course of business or any
other extraordinary accounting adjustments or non-recurring items of income
or loss. |
|||
| (C) | The
term "Net Worth" for purposes of this Exhibit J shall
mean the total of International’s consolidated shareholders equity, as
determined in accordance with generally accepted accounting principles,
consistently applied. |
|||
| (D) | The term "Total Funded Indebtedness" for purposes of this Exhibit J shall have the meaning and be determined in accordance with generally accepted accounting principles consistently applied by International on a consolidated basis in accordance with past practices. | |||
| (E) | The
term "Leverage Ratio" for purposes of this Exhibit J
shall mean: |
||
| 1. As of 03/31/01, the ratio of Total Funded Indebtedness as
of such date to EBITDA as measured from 10/01/00 to 03/31/01; |
|||
| 2. As of 06/30/01, the ratio of Total Funded Indebtedness as of such date to EBITDA as measured from 10/01/00 to 06/30/01; | |||
| 3. As of 09/30/01, the
ratio of Total Funded Indebtedness as of such date to EBITDA as measured from
10/01/00 to 09/30/01; and |
|||
| 4. As of 12/31/01 and as of the last
day of any fiscal quarter thereafter, the ratio of Total
Funded Indebtedness as of such date to EBITDA as measured on a four quarter
trailing basis. |
|||
| (F) | The
term “Unfunded Capital Expenditure Payments” for purposes of this Exhibit
J shall mean the amount of consolidated capital expenditures of
International which are not financed under the CapEx Facility nor any other
financing arrangement with any other person. |
||
| (G) | The term "Total
Debt Service Ratio" for purposes of this Exhibit J shall
mean: |
||
| 1.
For the period commencing
on the 07/01/01 and ending on 09/30/01,
the ratio of (a) EBITDA as measured from 01/01/01 to 09/30/01 to (b) the sum
of (i) the total consolidated
and regularly scheduled principal and interest payments of Total Funded
Indebtedness for the period 01/01/01 to 09/30/01, plus (ii)
Unfunded Capital Expenditure Payments for the period 01/01/01 to 09/30/01, minus
(iii) the US $1,000,000 Japanese principal payment paid by Vari-Lite
Asia, Inc. in March, 2001; |
|||
| 2.
For the period commencing on the 10/01/01 and ending on 12/31/01,
the ratio of (a) EBITDA as measured on a four quarter trailing basis to (b)
the sum of (i) the total
consolidated and regularly scheduled principal and interest payments of Total
Funded Indebtedness for such four quarter trailing period, plus (ii) Unfunded Capital
Expenditure Payments for such four quarter trailing period, minus (iii) the US $1,000,000 Japanese principal payment paid by
Vari-Lite Asia, Inc. in March, 2001, plus (iv) the amount of taxes
paid by International on a consolidated basis during such four quarter
trailing period, minus (v) the amount of Japanese taxes paid by
Vari-Lite Asia, Inc. in February, 2001; and |
|||
| 3. For all periods after 12/31/01, the ratio of (a) EBITDA as measured on a four quarter trailing basis to (b) the sum of (i) the total consolidated and regularly scheduled principal and interest payments of Total Funded Indebtedness for such four quarter trailing period, plus (ii) Unfunded Capital Expenditure Payments for such four quarter trailing period, plus (iii) the amount of taxes paid by International on a consolidated basis during such four quarter trailing period. | |||
