TEMPORARY WAIVER AGREEMENT
THIS TEMPORARY WAIVER AGREEMENT (this "TEMPORARY WAIVER")
effective as of August 12, 1999, by and among VARI-LITE INTERNATIONAL, INC.,
a Delaware corporation (the "BORROWER"), SUNTRUST BANK, ATLANTA, XXXXX
BROTHERS XXXXXXXX & CO., CHASE BANK OF TEXAS, N.A. (FORMERLY KNOWN AS TEXAS
COMMERCE BANK NATIONAL ASSOCIATION), COMERICA BANK-TEXAS and THE FIRST
NATIONAL BANK OF CHICAGO (collectively, the "LENDERS"), SUNTRUST BANK,
ATLANTA, as agent and collateral agent for the Lenders (in such capacities,
the "AGENT" and "COLLATERAL AGENT", respectively), and XXXXX BROTHERS
XXXXXXXX & CO, as co-agent for the Lenders (in such capacity, the "CO-AGENT").
W I T N E S S E T H:
WHEREAS, Borrower, the Lenders, the Agent, the Collateral Agent,
and the Co-Agent are parties to a certain Multicurrency Credit Agreement
dated as of December 19, 1997, as amended by a certain Amendment No. 1 to
Credit Agreement dated as of April 21, 1998, by a certain Amendment No. 2 to
Credit Agreement dated as of July 31, 1998, by a certain Amendment No. 3 to
Credit Agreement dated as of September 30, 1998, and by a certain Amendment
No. 4 to Credit Agreement dated as of April 1, 1999 (as so amended, the
"CREDIT AGREEMENT"; defined terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement);
WHEREAS, Borrower has requested that the Lenders agree to waive a
certain Event of Default, and the Lenders are willing to do so, subject to
the limitations set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
SECTION 1. TEMPORARY WAIVER. The Lenders signing below hereby
agree to waive, for the period from June 30, 1999 to August 20, 1999, any
Event of Default that occurred as a result of Borrower's failure to be in
compliance with the financial covenant requirements set forth in SECTION 6.08
of the Credit Agreement as of June 30, 1999; PROVIDED, HOWEVER, that the
foregoing waiver shall be limited in all respects solely to such period of
time, and the requirements to maintain the financial covenant requirements
set forth in Section 6.08 of the Credit Agreement as of June 30, 1999 shall
be and remain in full force and effect upon the expiration of the foregoing
waiver.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Agreement shall
become effective as of the date first above written (the "EFFECTIVE DATE")
when this Agreement shall have been executed and delivered by the Borrower
and Lenders constituting the Required Lenders as provided in the Credit
Agreement.
SECTION 3. STATUS OF OBLIGATIONS. Borrower hereby confirms and
agrees that all Loans and all other Obligations outstanding under the Credit
Agreement and the other Credit Documents as of the date hereof were duly and
validly created and incurred by Borrower hereunder, that all such outstanding
amounts are owed in accordance with the terms of the Credit Agreement and
other Credit Documents, and that there are no rights of offset, defense,
counterclaim, claim or objection in favor of Borrower arising out of or with
respect to any of the Loans or other Obligations of Borrower to the Agents or
the Lenders, and any such rights of offset, defense, counterclaim, claims or
objections have been and are hereby waived and released by Borrower.
SECTION 4. RATIFICATION OF CREDIT AGREEMENT. Except as expressly
amended herein, all terms, covenants and conditions of the Credit Agreement
and the other Credit Documents shall remain in full force and effect, and the
parties hereto do expressly ratify and confirm the Credit Agreement as
amended herein. All future references to the Credit Agreement shall be
deemed to refer to the Credit Agreement as amended hereby.
SECTION 5. BINDING NATURE. This Temporary Waiver shall be
binding upon and inure to the benefit of the parties hereto, their respective
successors, successors-in-titles, and assigns.
SECTION 6. COSTS AND EXPENSES. Borrower shall be responsible
for the costs and expenses of the Agents in connection with the preparation,
execution and delivery of this Temporary Waiver and the other instruments and
documents to be delivered hereunder, including, without limitation, the fees
and out-of-pocket expenses of counsel for the Agents with respect thereto.
SECTION 7. GOVERNING LAW. THIS TEMPORARY WAIVER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 8. ENTIRE UNDERSTANDING. This Temporary Waiver sets forth
the entire understanding of the parties with respect to the matters set forth
herein, and shall supersede any prior negotiations or agreements, whether
written or oral, with respect thereto.
SECTION 9. COUNTERPARTS. This Temporary Waiver may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts and may be delivered by telecopier. Each counterpart so
executed and delivered shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
SECTION 10. RELEASE. In consideration of the temporary waiver
granted by the Lenders pursuant to Section 1 above, Borrower hereby (a)
releases, acquits and forever discharges each Agent, the Co-Agent, each
Lender, and each of their respective agents, employees, officers, directors,
servants, representatives, attorneys, affiliates, successors and assigns
(collectively, the "Released Parties") from any and all liabilities, claims,
suits, debts, liens, losses, causes of action, demands, rights, damages,
costs and expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent, that Borrower may have
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or claim to have against such Lender which might arise out of or be connected
with any act of commission or omission of such Lender existing or occurring
on or prior to the date of this Temporary Waiver, including, without
limitation, any claims, liabilities or obligations relating to or arising out
of or in connection with the Credit Agreement, any other Credit Documents or
this Temporary Waiver (including, without limitation, arising out of or in
connection with the initiation, negotiation, closing or administration of the
transactions contemplated thereby or related thereto), from the beginning of
time until the execution and delivery of this release and the effectiveness
of this Temporary Waiver (the "Released Claims") and (b) agree forever to
refrain from commencing, instituting or prosecuting any lawsuit, action or
other proceeding against the Released Parties with respect to any and all
Released Claims.
SECTION 11. INDEMNITY. In consideration of the temporary waiver
granted by the Lenders pursuant to Section 1 above, Borrower hereby indemnify
each Agent, the Co-Agent and each Lender, and their respective officers,
partners, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to this
Temporary Waiver, the Credit Agreement or any other Credit Documents or any
actual or proposed use of the proceeds of any of the Loans, including,
without limitation, the reasonable fees and disbursements of counsel
(including foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding; PROVIDED, HOWEVER, Borrower
shall not be obligated to indemnify any Indemnitee for any of the foregoing
arising out of such Indemnitee's gross negligence or willful misconduct.
SECTION 12. NO WAIVER, ETC. The Borrower hereby agrees that,
except as otherwise expressly provided in Section 1 hereof, nothing herein
shall constitute a waiver by the Lenders of any Default or Event of Default,
whether known or unknown, which may exist under the Credit Agreement. The
Borrowers hereby further agree that no action, inaction or agreement by the
Lenders, including without limitation, any indulgence, waiver, consent or
agreement altering the provisions of the Credit Agreement which may have
occurred with respect to the non-payment of any obligation under the terms of
the Credit Agreement or any portion thereof, or any other matter relating to
the Credit Agreement, shall require or imply any future indulgence, waiver,
or agreement by the Lenders.
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IN WITNESS WHEREOF, the parties hereto have executed this Temporary
Waiver through their authorized officers as of the date first above written.
VARI-LITE INTERNATIONAL, INC.
By:
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Name:
Title:
SUNTRUST BANK, ATLANTA,
INDIVIDUALLY AND AS AGENT AND COLLATERAL
AGENT
By:
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Name:
Title:
PER PRO XXXXX BROTHERS XXXXXXXX &
CO., INDIVIDUALLY AND AS CO-AGENT
By:
---------------------------------------------
Name:
Title:
CHASE BANK OF TEXAS, N.A.
(FORMERLY TEXAS COMMERCE BANK NATIONAL
ASSOCIATION)
By:
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Name:
Title:
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COMERICA BANK-TEXAS
By:
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
Title:
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