GUARANTY--VARI-LITE INTERNATIONAL, INC.
GUARANTY, dated as of December 29, 2000, made by VARI-LITE
INTERNATIONAL, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Guarantor"), in favor of FIRSTAR BANK, NATIONAL
ASSOCIATION, a national banking association ("Bank").
PRELIMINARY STATEMENT. Bank has entered into a Financing
Agreement dated as of the date hereof (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being the "Financing
Agreement") with Vari-Lite, Inc., a corporation organized and existing under
the laws of the State of Delaware ("Borrower") and a wholly-owned Subsidiary
of Guarantor. It is a condition precedent to the making of Loans by Bank
under the Financing Agreement that the Guarantor shall have executed and
delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in
order to induce Bank to make Loans under the Financing Agreement, the
Guarantor hereby agrees as follows.
SECTION 1. GUARANTY. The Guarantor hereby unconditionally
guarantees the full and prompt payment when due, whether upon the occurrence
of an Event of Default or earlier, by reason of acceleration or otherwise,
and at all times thereafter of (i) all of the indebtedness, liabilities and
obligations of every kind and nature of the Borrower to Bank, howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, and howsoever owned, held or acquired by Bank, whether through discount,
overdraft, purchase, direct loan or as collateral or otherwise, (ii) all of
the Borrower's indebtedness, liabilities and obligations under the Financing
Agreement and each other Loan Document, and (iii) all expenses (including
Attorneys' Fees) incurred by Bank in enforcing any rights under this Guaranty
(all such indebtedness, liabilities, obligations and expenses being
collectively referred to herein as the "Obligations").
SECTION 2. GUARANTY ABSOLUTE. The Guarantor guarantees that
the Obligations will be paid strictly in accordance with the terms of the
Financing Agreement and each other Loan Document, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of Bank with respect thereto. The liability
of the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of any of the Financing
Agreement, the Loan Documents or any other agreement or instrument evidencing
all or any part of the Obligations;
(ii) the absence of any attempt to collect the Obligations from the
Borrower or any guarantor or other action to enforce the same;
(iii) the waiver or consent by Bank with respect to any provision of
any document evidencing the Obligations, or any part thereof, or any other
agreement now or hereafter executed by the Borrower and delivered to Bank and
any modification thereof;
(iv) failure by Bank to take any steps to perfect and maintain its
security interest in, or preserve its rights to, any security or collateral
for the Obligations;
(v) Bank's election in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. Section 101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the Bankruptcy
Code;
(vi) any borrowing or grant of a security interest under Section 364
of the Bankruptcy Code; or
(vii) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
SECTION 3. WAIVER. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of the Borrower, protest or notice with respect to
the Obligations and all demands whatsoever, and covenants that this Guaranty
will not be discharged, except by complete performance of the Obligations
contained herein. Upon any Event of Default as provided in the Financing
Agreement or any other instrument or document evidencing all or any part of
the Obligations, Bank may, at its election, proceed directly and at once,
without notice, against the Guarantor to collect and recover the full amount
or any portion of the Obligations, without first proceeding against the
Borrower or any other Person or against any security or collateral for the
Obligations. Bank shall have the exclusive right to determine the application
of payments and credits, if any, from the Guarantor, the Borrower or from any
other Person on account of the Obligations or of any other liability of the
Guarantor to Bank.
SECTION 4. AUTHORIZATION. Bank is hereby authorized,
without notice or demand and without affecting the liability of the Guarantor
hereunder, from time to time, to (i) renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, the Obligations,
or otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument now or hereafter executed by the
Borrower and delivered to Bank; (ii) accept partial payments on the
Obligations; (iii) take and hold security or collateral for the payment of
this Guaranty, any other guarantees of the Obligations or other liabilities
of the Borrower and the Obligations guaranteed hereby, and exchange, enforce,
waive and release any such security or collateral; (iv) apply such security
or collateral and direct the order or manner of sale thereof as in its sole
discretion it may determine; and (v) settle, release, compromise, collect or
otherwise liquidate the Obligations and any security or collateral therefor
in any manner, without affecting or impairing the obligations of the
Guarantor hereunder.
At any time upon the occurrence and during the continuation
of an Event of Default, Bank may, in its sole discretion, without notice to
the Guarantor and regardless of the acceptance of any security or collateral
for the payment hereof, appropriate and apply toward the
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payment of the Obligations (i) any indebtedness due or to become due from
Bank to the Guarantor, and (ii) any moneys, credits or other property
belonging to the Guarantor, at any time held by or coming into the possession
of Bank.
SECTION 5. SUBROGATION. The Guarantor shall have no right
of subrogation and hereby waives any right to enforce any remedy which Bank
now has or may hereafter have against the Borrower or any endorser or any
other guarantor of all or any part of the Obligations, and the Guarantor
hereby waives any benefit of, and any right to participate in, any security
or collateral given to Bank to secure payment of the Obligations or any other
liability of the Borrower to Bank. The Guarantor further agrees that any and
all claims of the Guarantor against the Borrower or any endorser or any other
guarantor of all or any part of the Obligations, or against any of their
respective properties, arising by reason of any payment by the Guarantor to
Bank pursuant to the provisions hereof or otherwise, shall be subordinate and
subject in right of payment to the prior payment, in full, of all principal
and interest, all reasonable costs of collection (including Attorneys' Fees)
and any other liabilities or obligations owing to Bank by the Borrower which
may arise either with respect to or on any note, instrument, document, item,
agreement or other writing heretofore, now or hereafter delivered to Bank.
The Guarantor also waives all setoffs and counterclaims and all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this Guaranty. The
Guarantor further waives all notices of the existence, creation or incurring
of new or additional indebtedness, arising either from additional loans
extended to the Borrower or otherwise, and also waives all notices that the
principal amount, or any portion thereof, and/or any interest on any
instrument or document evidencing all or any part of the Obligations is due,
notices of any and all proceedings to collect from the maker, any endorser or
any other guarantor of all or any part of the Obligations, or from anyone
else, and, to the extent permitted by law, notices of exchange, sale,
surrender or other handling of any security or collateral given to Bank to
secure payment of the Obligations.
SECTION 6. FINANCIAL CONDITION OF BORROWER. The Guarantor
hereby assumes responsibility for keeping itself informed of the financial
condition of the Borrower and of all circumstances bearing upon the risk of
nonpayment of the Obligations or any part thereof that diligent inquiry would
reveal and the Guarantor hereby agrees that Bank shall not have any duty to
advise the Guarantor of information known to Bank regarding such condition or
any such circumstances. In the event Bank, in its sole discretion, undertakes
at any time or from time to time to provide any such information to the
Guarantor, Bank shall not be under any obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose
any information which, pursuant to accepted or reasonable commercial finance
practices, Bank wishes to maintain confidential or (iii) to make any other or
future disclosures of such information or any other information to the
Guarantor.
SECTION 7. MARSHALLING OF ASSETS. The Guarantor consents
and agrees that Bank shall not be under any obligation to marshal any assets
in favor of the Guarantor or against or in payment of any or all of the
Obligations. The Guarantor further agrees that, to the extent that the
Borrower makes a payment or payments to Bank, or Bank receives any proceeds
of collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to the Borrower, its estate,
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trustee, receiver or any other party, including, without limitation, the
Guarantor, under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
Obligations or part thereof which have been paid, reduced or satisfied by
such amount shall be reinstated and continued in full force and effect as of
the date such initial payment, reduction or satisfaction occurred.
SECTION 8. REPRESENTATIONS AND WARRANTIES; INCUMBENCY;
COVENANTS.
(a) The Guarantor hereby represents and warrants that (i)
the Guarantor is a corporation duly organized and existing in good standing
and has full power and authority to make and deliver this Guaranty; (ii) the
execution, delivery and performance of this Guaranty by the Guarantor have
been duly authorized by all necessary action of its directors and
shareholders and do not and will not violate the provisions of, or constitute
a default under, any presently applicable law or its By-Laws or any agreement
presently binding on it; (iii) this Guaranty has been duly executed and
delivered by the authorized officers of the Guarantor and constitutes its
lawful, binding and legally enforceable obligation (subject to the United
States Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights and general principles of equity); (iv) the
authorization, execution, delivery and performance of this Guaranty do not
require notification to, registration with, or consent or approval by, any
federal, state or local regulatory body or administrative agency; (v) the
authorized capital stock of the Guarantor consists of 40,000,000 of common
shares ("Common Stock") of which 7,800,003 shares are outstanding on the date
of this Agreement and 10,000,000 preferred shares of which no shares are
issued and outstanding, and each outstanding share of Common Stock is duly
authorized, validly issued, fully paid and nonassessable; and (vi) there are
no actions, suits or proceedings pending or threatened against or affecting
the Guarantor, or any of its properties, before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, if adversely determined, may (A) call into question the
legality, validity or enforceability of this Guaranty or any Loan Document,
or (B) have a material adverse effect on the condition, financial or
otherwise, operations, properties or prospects of the Guarantor.
(b) The Guarantor shall deliver to Bank, concurrently with
the execution of this Guaranty, (i) a certificate executed by an authorized
officer of the Guarantor certifying (A) the resolutions of the Board of
Directors of the Guarantor authorizing the execution, performance and
delivery of this Guaranty, (B) the names and signatures of the officers of
the Guarantor executing or attesting to this Guaranty, and (C) as true,
correct, complete and in full force and effect, without amendment or
revocation as of the date hereof, the Guarantor's Certificate of
Incorporation and By-Laws, (ii) the Guarantor's Certificate of Incorporation,
certified by the Secretary of State of Delaware and (iii) a good standing
certificate for the Guarantor issued by the Secretary of State of Texas.
(c) The Guarantor shall execute and deliver, and shall
cause its Subsidiaries to execute and deliver, to Bank such Subordination
Agreements as may be requested by Bank in form and substance satisfactory to
Bank in its discretion regarding the subordination by Guarantor and each of
its Subsidiaries, as the case may be, of loans by Guarantor or its
Subsidiaries to Borrower.
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(d) The Guarantor hereby represents and warrants that there
exists no restrictions, by agreement, operation of law or otherwise, which
prevent or restrict the ability of Guarantor to make investments, equity or
capital contributions, advances or loans to Vari-Lite Europe Holdings,
Limited or of Vari-Lite Europe Holdings, Limited to make dividends,
distributions, or repayment of loans or capital contributions to Guarantor.
SECTION 9. NEGATIVE COVENANTS. The Guarantor covenants and
agrees that, so long as any part of the Obligations shall remain unpaid or
the Financing Agreement remains in effect, the Guarantor will not, without
the prior written consent of Bank:
(a) LIENS, ETC. Except as permitted by the Financing
Agreement, create or suffer to exist any lien, security interest or
other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its properties, whether now
owned or hereafter acquired, or assign any right to receive income, in
each case to secure any Indebtedness of any Person;
(b) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of any of its assets other than in connection with the winding
up or dissolution of Subsidiaries of the Guarantor which are dormant;
or sell, lease, transfer or otherwise dispose of all or substantially
all of its shares of stock in or of assets owned by Borrower, Vari-Lite
Production Services Limited, Vari-Lite Europe Holdings Limited or
Vari-Lite Asia, Inc.
(c) CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of its business as carried on at the date of this Agreement.
(d) UNCALLED CAPITAL. Have any uncalled capital with respect
to its investment in or ownership of the equity of Vari-Lite Europe
Holdings, Limited.
SECTION 10. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Bank, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 11. ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing and, if to the
Guarantor, mailed or delivered to it, addressed to it at Vari-Lite
International, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief
Financial Officer, if to Bank, mailed or delivered to it, addressed to it at
the address of Bank specified in the Financing Agreement, or as to each party
at such other address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and other communications shall, when mailed, be
effective upon the earlier of (i) receipt by the party so notified, or (ii)
forty-eight (48) hours following deposit in the mails, addressed as aforesaid.
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SECTION 12. NO WAIVER; REMEDIES. No failure on the part of
Bank to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as a waiver thereof, and no single or partial exercise by Bank
of any right or remedy shall preclude any other or further exercise thereof
or the exercise of any other right; nor shall any modification, amendment or
waiver of any of the provisions of this Guaranty be binding upon Bank, except
as expressly set forth in a writing duly signed and delivered by an
authorized officer or agent of Bank on behalf of Bank. Bank's failure at any
time or times hereafter to require strict performance by the Borrower or the
Guarantor of any of the provisions, warranties, terms and conditions
contained in any promissory note, security agreement, agreement, guaranty,
instrument or document now or at any time or times hereafter executed by the
Borrower or the Guarantor and delivered to Bank shall not waive, affect or
diminish any right of Bank at any time or times hereafter to demand strict
performance thereof and such right shall not be deemed to have been waived by
any act or knowledge of Bank, its agents, officers or employees, unless such
waiver is contained in an instrument in writing signed by an officer or agent
of Bank and directed to the Borrower specifying such waiver. No waiver by
Bank of any default or Event of Default shall operate as a waiver of any
other default or the same default or Event of Default on a future occasion,
and no action by Bank permitted hereunder shall in any way affect or impair
Bank's rights or the obligations of the Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by the Borrower to Bank shall be conclusive
and binding on the Guarantor irrespective of whether the Guarantor was a
party to the suit or action in which such determination was made. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 13. RIGHT OF SET-OFF. At any time upon the
occurrence and during the continuation of an Event of Default, Bank is hereby
authorized at any time and from time to time without notice to Guarantor to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by Bank to or for the
credit or the account of the Guarantor against any and all of the obligations
of the Guarantor now or hereafter existing under this Guaranty, irrespective
of whether or not Bank shall have made any demand under this Guaranty and
although such obligations of the Guarantor may be contingent and no Event of
Default shall have occurred. Bank agrees promptly to notify the Guarantor
after any such set-off and application made by Bank, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of Bank under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set off)
which Bank may have.
SECTION 14. CONTINUING GUARANTY. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect until
payment in full of the Obligations and the termination of all of Bank's
obligations arising under the Financing Agreement and all other amounts
payable under this Guaranty, (ii) be binding upon the Guarantor, its
successors and assigns, and (iii) inure to the benefit of and be enforceable
by Bank and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), Bank may assign or otherwise
transfer any portion of the Borrower's Indebtedness to Bank held by it to any
other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect of such Indebtedness granted to
Bank herein or otherwise.
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SECTION 15. GOVERNING LAW. This Guaranty shall be governed
by, and construed in accordance with, the laws of the State of Ohio, without
regard to principles of conflict of laws.
SECTION 16. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS.
SECTION 17. WAIVER OF JURISDICTION. THE GUARANTOR HEREBY
AGREES TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
CUYAHOGA COUNTY, OHIO. THE GUARANTOR CONSENTS THAT ALL SERVICE OF PROCESS MAY
BE MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AND BANK AT THEIR ADDRESSES
SET FORTH IN SECTION 11 HEREOF AND SECTION 15.9 OF THE FINANCING AGREEMENT,
RESPECTIVELY, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S., POSTAGE
PREPAID. THE GUARANTOR WAIVES ANY OBJECTION TO JURISDICTION OVER THE PERSON
OR, TO THE EXTENT OF COMPLIANCE WITH THE IMMEDIATELY PRECEDING SENTENCE,
SUFFICIENCY OF PROCESS OR SERVICE UPON IT.
SECTION 18. CAPITALIZED TERMS. Capitalized terms not
otherwise defined herein are used herein with the meanings ascribed to such
terms in the Financing Agreement.
SECTION 19. CONFESSION OF JUDGMENT. The Guarantor hereby
irrevocably authorizes and empowers any attorney-at-law to appear for the
Guarantor in any action upon or in connection with this Guaranty at any time
after the Loans and/or other Obligations become due, as herein provided, in
any court in or of the State of Ohio or elsewhere, and waives the issuance
and service of process with respect thereto, and irrevocably authorizes and
empowers any such attorney-at-law to confess judgment in favor of Bank
against the Guarantor, the amount due thereon or hereon, plus interest as
herein provided, and all costs of collection, and waives and releases all
errors in said proceedings and judgments and all rights of appeal from the
judgment rendered. Guarantor agrees and consents that the attorney confessing
judgment on behalf of Guarantor may also be counsel to Bank or any of Bank's
Affiliates, waives any conflict of interest which might otherwise arise, and
consents to Bank paying such confessing attorney a reasonable legal fee or
allowing such attorney's reasonable fees to be paid from the proceeds of
collection of the Loans and/or Obligations or proceeds of any Collateral or
any other security for the Loans and the other Obligations.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be duly executed and delivered by its officer thereunto duly authorized as
of the date first above written.
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
VARI-LITE INTERNATIONAL, INC.
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Name: ▇▇▇▇▇▇ ▇. Trojan III
Title: Vice President-Finance and CFO