Exhibit 10.10
WAIVER, dated as of May 4, 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 :
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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 March 31, 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 March 31, 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 March 31, 2001.
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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 March 31,
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 March 31, 2001 was not less than $53,750,000.
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'
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.
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 ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Director, President, COO,
Acting CFO and Treasurer
AUDIO VISUAL SERVICES (NY) CORPORATION
By: /s/: Digby ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
CFO and Treasurer
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT
By: /s/: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BBT FUND, L.P.
By: BBT GENPAR, L.P., Its General Partner
By: BBT-FW, INC., Its General Partner
By: /s/: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
HALCYON RESTRUCTURING FUND, L.P.
By: /s/: ▇▇▇▇▇ Pasquaretti
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Name: ▇▇▇▇▇ Pasquaretti
Title: CFO
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/: ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
▇.▇. ▇▇▇▇▇▇ Securities, Inc., as
agent for the Chase Manhattan Bank
By: /s/: ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
TRI-LINKS INVESTMENT TRUST
by Wilmington Trust Company as Owner Trustees
By: /s/: ▇▇▇▇▇ ▇. Vaneskey, Jr.
---------------------------------
Name: ▇▇▇▇▇ ▇. Vaneskey, Jr.
Title: Vice President
▇▇▇-▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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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 ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
CFO and Treasurer
AUDIO VISUAL SERVICES GROUP, INC.
By: /s/: Digby ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Treasurer
VISUAL ACTION HOLDINGS INC.
By: /s/: Digby ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Treasurer
HRI, V.I., INC.
By: /s/: Digby ▇. ▇▇▇▇▇▇
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Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Treasurer