Exhibit 10.1
WAIVER
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WAIVER (this "WAIVER"), dated as of February 26, 2001, to the Credit
and Guaranty Agreement, dated as of March 18, 1999, as amended by the First
Amendment and Consent, dated as of July 1, 1999, the Second Amendment and
Consent, dated as of October 26, 1999, the Third Amendment, dated as of January
14, 2000 and the Fourth Amendment and Waiver, dated as of August 2, 2000 (as the
same may be further amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Muzak LLC, formerly known as Audio
Communications Network, LLC (the "Borrower"), Muzak Holdings LLC ("Holdings")
and certain Subsidiaries of the Borrower (the "Guarantors"), various Lenders
from time to time party thereto, Xxxxxxx Xxxxx Credit Partners L.P. ("GSCP"), as
Syndication Agent, Canadian Imperial Bank of Commerce, as Administrative Agent
(the "Administrative Agent"), and GSCP and CIBC Xxxxxxxxxxx Corp., as Co-Lead
Arrangers.
RECITALS
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WHEREAS, capitalized terms used herein which are not herein defined
shall have the meanings ascribed thereto by the Credit Agreement; and
WHEREAS, Borrower requests that Lenders waive any Default or Event of
Default that may have occurred as a result of any violation of Section 6.6(e) of
the Credit Agreement (Maximum Consolidated Capital Expenditures) as of December
31, 2000 (the "Subject Event of Default").
THEREFORE, in consideration of the foregoing and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Waiver. The Lenders party hereto hereby waive the Subject Event of
Default; provided, that Holdings shall not, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures for Fiscal Year
2000 in excess of $42,600,000. The waiver set forth in this Section 1 shall be
effective only as to the matters set forth specifically herein and shall not
entitle Borrower to any other waiver or agreement with respect to any other
matter or affect any other provisions of the Credit Documents or affect any of
the rights or remedies of the Agents or Lenders except as provided above.
2. Effectiveness. This Waiver shall not be effective until such time as
the Credit Parties, the Administrative Agent and the Requisite Lenders shall
have indicated their consent by the execution and delivery of the signature
pages hereof to Administrative Agent.
3. Representations and Warranties of Each Credit Party. Each Credit
Party hereby represents and warrants to the Administrative Agent and the Lenders
that:
(a) the execution, delivery and performance of this Waiver
have been duly authorized by all necessary action on the part of each Credit
Party. The execution, delivery and
performance by each Credit Party of this Waiver and the consummation of the
transactions contemplated by this Waiver do not and will not (a) violate any
provision of any law or governmental rule or regulation applicable to such
Credit Party, the Organizational Documents of such Credit Party, or any order,
judgment or decree of any court or other agency of governmental binding on any
Credit Party, (b) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
any Credit Party (including, without limitation, the Senior Subordinated Note
Indenture), (c) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Credit Party or any of its Subsidiaries,
or (d) require the approval of members of any Credit Party or any approval or
consent of any Person under any Contractual Obligation, except for such
approvals or consents which will be obtained on or before the date hereof and
disclosed in writing to the Lenders and except for any such approvals or
consents the failure of which to obtain will not have a Material Adverse Effect;
(b) this Waiver and each Credit Document has been duly
executed and delivered by each Credit Party and is the legally valid and binding
obligation of such Credit Party, enforceable against such Credit Party in
accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability;
(c) on or as of the date hereof, and after giving effect to
this Waiver and the transactions contemplated hereunder, no Default or Event of
Default has occurred and is continuing (other than as waived hereby); and
(d) the representations and warranties of each Credit Party
contained in the Credit Agreement and the Credit Documents are true and correct
on and as of the date hereof as if made on and as of the date hereof, except to
the extent such representations and warranties expressly relate to a specific
date.
4. Acknowledgements and Covenants of Each Credit Party. Each Credit
Party hereby (a) reaffirms and admits the validity and enforceability of the
Credit Agreement and the other Credit Documents and all of its obligations
thereunder, (b) agrees and admits that it has no defenses to or offsets against
any of its obligations to the Administrative Agent or any Lender under the
Credit Documents, and (c) agrees to pay all of expenses of the Co-Agents
(including counsel fees and disbursements) incurred in connection with the
preparation, negotiation and completion of this Waiver.
5. Status of Credit Documents. This Waiver is limited solely for the
purposes and to the extent expressly set forth herein, and, except as expressly
modified hereby, the terms, provisions and conditions of the Credit Documents
and the Liens granted thereunder shall continue in full force and effect and are
hereby ratified and confirmed in all respects.
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6. Counterparts. This Waiver may be executed in any number of
counterparts all of which, taken together, shall constitute one Amendment. In
making proof of this Waiver, it shall only be necessary to produce the
counterpart executed and delivered by the party to be charged.
7. Governing Law. This Waiver AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
MUZAK LLC
By: /s/ Xxxx Xxxxxx
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Name:
Title: Vice President and Secretary
By signing below, the Guarantors (w) ratify and reaffirm the Credit Documents to
which they are a party, (x) acknowledge this Waiver and (y) agree and admit that
they have no defenses or offsets against any of their obligations to the
Administrative Agent or any Lender under the Credit Documents.
MUZAK HOLDINGS LLC BUSINESS SOUND, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: Name:
Title: Vice President Title: Vice President
MUZAK CAPITAL CORPORATION BI ACQUISITION, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: Name:
Title: Vice President Title: Vice President
MLP ENVIRONMENTAL MUSIC, LLC AUDIO ENVIRONMENTS, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: Name:
Title: Vice President Title: Vice President
ELECTRO-SYSTEMS CORPORATION TELEPHONE AUDIO PRODUCTIONS, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: Name:
Title: Vice President Title: Vice President
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BACKGROUND MUSIC BROADCASTERS,
INC.
By: /s/ Xxxx Xxxxxx
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Name:
Title: Vice President
MUZAK HOUSTON, INC.
By: /s/ Xxxx Xxxxxx
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Name:
Title: Vice President
VORTEX SOUND COMMUNICATIONS
COMPANY, INC.
By: /s/ Xxxx Xxxxxx
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Name:
Title: Vice President
MUSIC INCORPORATED
By: /s/ Xxxx Xxxxxx
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Name:
Title: Vice President
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CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name:
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Syndication Agent and a Lender
By: /s/ Xxxxxxxxx Xxxxxxx
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Authorized Signatory
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