EXHIBIT 10.11
SEVENTH AMENDMENT AND WAIVER, dated as of September 10, 2001 (this
"SEVENTH AMENDMENT"), to the Credit Agreement dated as of October 28, 1997 (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 XXXXXXX XXXXX CAPITAL CORPORATION, as
Syndication Agent (in such capacity, the "SYNDICATION AGENT"; collectively with
the Administrative Agent, the "AGENTS").
W I T N E S S E T H :
- - - - - - - - - -
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 and other extensions of credit to the Borrowers on the terms
and subject to the conditions thereof;
WHEREAS, the Revolving Credit Termination Date and the Term Loan
Maturity Date is October 1, 2001;
WHEREAS, the Company, the Lenders and the Administrative Agent are
requesting the implementation of a restructuring of the Company's Indebtedness
and equity structure;
WHEREAS, the Company has requested an extension of each of the
Revolving Credit Termination Date and the Term Loan Maturity Date to, in each
case, December 14, 2001 to enable the consummation of such restructuring;
WHEREAS, in order to assist with the implementation of the
restructuring, the Company has requested a waiver of any Default or Event of
Default arising from any failure by the Borrowers to achieve the minimum
Consolidated Unadjusted EBITDA required by Section 7.01(c) of the Credit
Agreement for the 12 month period ending September 30, 2001; and
WHEREAS, the Lenders are willing to agree to the foregoing requests,
but only on the terms and subject to the conditions of this Seventh Amendment
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.
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SECTION 2. AMENDMENTS.
2.1 AMENDMENTS TO SECTION 1.01 OF THE CREDIT AGREEMENT.
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
the following new definitions in their proper alphabetical order:
""SEVENTH AMENDMENT" shall mean the Seventh Amendment and Waiver,
dated as of September 5, 2001, to this Agreement.
"SEVENTH AMENDMENT EFFECTIVE DATE" has the meaning assigned thereto in
the Seventh Amendment.".
(b) Section 1.01 of the Credit Agreement is hereby amended by
deleting the phrase "Revolving Credit Termination Date" where it appears in the
definition of "Revolving Credit Commitment Period" and inserting in lieu
thereof, "Seventh Amendment Effective Date".
(c) Section 1.01 of the Credit Agreement is hereby amended by
deleting the phrase "October 1, 2001" where it appears in the definition of
"Revolving Credit Termination Date" and inserting in lieu thereof, "December 14,
2001".
(d) Section 1.01 of the Credit Agreement is hereby amended by
deleting the phrase "October 1, 2001" where it appears in the definition of
"Term Loan Maturity Date" and inserting in lieu thereof, "December 14, 2001".
2.2 AMENDMENT TO SECTION 2.04 (REPAYMENT OF LOANS; EVIDENCE OF DEBT).
Section 2.04(b) is hereby amended by deleting the phrase "October 1,
2001" where it appears therein and inserting in lieu thereof, "December 14,
2001".
2.3 AMENDMENT TO SECTION 2.09 (INTEREST).
(a) Section 2.09(d) is hereby amended by deleting the phrase "Section
2.09(f)," where it appears therein and inserting in lieu thereof the phrase
"Sections 2.09(f) and (g),".
(b) Section 2.09 is hereby amended by inserting a new section 2.09(g)
as set forth below:
"(g) On and from the Seventh Amendment Effective Date, accrued
interest payable on each Interest Payment Date shall be capitalized and added to
the principal amount of the Loans and shall be payable in arrears (together with
additional interest accrued thereon) on the earliest to occur of (i) the
Revolving Credit Termination Date, (ii) December 14, 2001, (iii) the date the
Loans become due and payable in accordance with Article VIII hereof and (iv) the
date on which all of the Obligations shall have been paid in full and the
Commitments shall have been terminated.".
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SECTION 3. WAIVER.
3.1 WAIVER. The Lenders hereby waive: (i) any Default or Event of
Default under Article VIII(c) of the Credit Agreement resulting from the
Borrowers failure to achieve the minimum Consolidated Unadjusted EBITDA required
by Section 7.01(c) of the Credit Agreement for the period of four consecutive
fiscal quarters ending on September 30, 2001; and (ii) any Default or Event of
Default under Article VIII(e) of the Credit Agreement resulting from the
occurrence of an event of default under the New Credit Agreement arising on
account of the Borrowers failure to achieve the minimum "Consolidated Unadjusted
EBITDA" (as defined in the New Credit Agreement) required by Section 6.01(a) of
the New Credit Agreement for the period of four consecutive fiscal quarters
ending on September 30, 2001.
SECTION 4. ACKNOWLEDGMENT/RELEASE.
4.1 COLLATERAL. Each Loan Party ratifies and reaffirms the validity
and enforceability (without defense, counterclaim or offset of any kind) of the
liens and security interests granted to secure any of the Obligations by such
Loan Party to the Administrative Agent, for the benefit of the Lenders, pursuant
to the Security Documents to which such Loan Party is a party. Each Loan Party
acknowledges and agrees that all such liens and security interests granted by
such Loan Party shall continue to secure the Obligations from and after the
Seventh Amendment Effective Date.
4.2 RELEASE. Each Loan Party acknowledges and agrees that such Loan
Party has no claim, right or cause of action of any kind against any Lender, the
Administrative Agent or any of such Lender's or the Administrative Agent's
present or former subsidiaries, Affiliates, officers, directors, employees,
attorneys or other representatives or agents (collectively with their respective
successors and assigns, the "LENDER PARTIES") in connection with the
Obligations, the Credit Agreement and the other Loan Documents, or the
transactions contemplated hereby or thereby. Each Loan Party unconditionally,
freely, voluntarily and, after consultation with counsel and becoming fully and
adequately informed as to the relevant facts, circumstances and consequences,
releases, waives and forever discharges (and further agrees not to allege, claim
or pursue) any and all claims, rights, liabilities, causes of action,
counterclaims or defenses of any kind whatsoever, in contract or in tort, in law
or in equity, whether known or unknown, direct or derivative, which such Loan
Party or any predecessor might otherwise have or may have against any Lender
Party on account of any conduct, condition, act, omission, event, contract,
liability, obligation, demand, covenant, promise, indebtedness, claim, right,
cause of action, suit, damage, defense, circumstance or matter of any kind
whatsoever which existed, arose or occurred at any time prior to the Seventh
Amendment Effective Date in connection with the Obligations, the Credit
Agreement and the other Loan Documents.
SECTION 5. MISCELLANEOUS.
5.1 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. (a) After giving
effect to this Seventh Amendment, the Borrowers hereby represent and warrant
that all representations and warranties contained in 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 as of such earlier date) and that no
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Default or Event of Default shall have occurred and be continuing or would
result from the execution and delivery of this Seventh Amendment.
(b) The Borrowers further represent and warrant that as of the
Seventh Amendment Effective Date, the Borrowers and the other Loan Parties are
truly and justly indebted (including contingent liabilities in respect of
Letters of Credit) to the Agents and the Lenders pursuant to the Loan Documents,
in the principal amount of $364,039,638.14 plus accrued interest, fees,
including without limitation, all amounts payable pursuant to the Deferred
Amendment Fee Letters, and other amounts payable pursuant to the Loan Documents,
without defense, counterclaim or offset of any kind.
5.2 CONDITIONS TO EFFECTIVENESS OF THIS SEVENTH AMENDMENT.
(a) This Seventh Amendment shall be effective as of the date first
set forth above (the "SEVENTH AMENDMENT EFFECTIVE DATE") upon the satisfaction
of the following conditions:
(b) receipt by the Administrative Agent of counterparts hereof duly
executed and delivered by the Borrowers and each Lender and consented to by the
Loan Parties (other than the Borrowers); and
(c) the payment by the Borrowers of the costs and expenses of the
Administrative Agent owing under Section 10.05 of the Credit Agreement and for
which invoices have been submitted.
5.3 LIMITED EFFECT. Except as expressly amended by this Seventh
Amendment, the Credit Agreement is and shall continue to be in full force and
effect in accordance with its terms, and this Seventh Amendment 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, including without limitation, any amendment, modification or
waiver of any section amended or waived pursuant to this Seventh Amendment for
any other date or time period.
5.4 GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.5 COUNTERPARTS. This Seventh Amendment 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 Seventh Amendment may
be delivered by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment 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 X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: President & COO
AUDIO VISUAL SERVICES (NY)
CORPORATION
By: /s/ DIGBY X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ X.X. XXXXX
--------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
BANK POLSKA KASA OPIEKI S.A.
PEKAO S.A. GROUP, NEW YORK BRANCH
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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BBT FUND, L.P.
By: BBT GENPAR, L.P., Its General Partner
By: BBT-FW, INC., Its General Partner
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, L.L.C.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
CREDIT AGRICOLE INDOSUEZ
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By: /s/ XXX XXX XXXXXXX
--------------------------------------
Name: Xxx Xxx Xxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ XXXXX X. XXXX
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
HALCYON RESTRUCTURING FUND, L.P.
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Principal
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ING BARING (US) CAPITAL LLC,
Acting as Agent for
MIDDENBANK CURACAO N.V.
By: /s/ XXXX DE LA XXXX
--------------------------------------
Name: Xxxx De La Xxxx
Title: Vice President
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ XXXXX XXXXXXX
--------------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
Highland Capital Management
ML CLO X1X STERLING (CAYMAN) LTD.
By: Highland Capital Management, L.P.
(as successor in interest to
Sterling Asset Manager LLC)
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital Management, L.P.
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital Management, L.P.
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PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
Highland Capital Management, L.P.
RCG CARPATHIA MASTER FUND, LTD.
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
XXXXXXX CAPITAL MANAGEMENT L.P.
By: /s/ A. DEV XXXXXX
--------------------------------------
Name: A. Dev Xxxxxx
Title: Partner
NOMURA SPECIAL SITUATIONS
INVESTMENT TRUST
by: Wilmington Trust Company as Trustee
By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx
Title: Vice President
X. XXXX PRICE RECOVERY FUND II, L.P.
By: /s/ XXX X. XXXXXX
--------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Director
XXX XXXXXX SENIOR FLOATING RATE
FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX PRIME RATE INCOME
TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
Each of the undersigned hereby consents to the foregoing Seventh
Amendment 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 Seventh Amendment.
AVSC INTELLECTUAL PROPERTY
MANAGEMENT, INC.
By: /s/ DIGBY X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President & COO
AUDIO VISUAL SERVICES GROUP, INC.
By: /s/ DIGBY X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President & COO
VISUAL ACTION HOLDINGS INC.
By: /s/ DIGBY X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
HRI, V.I., INC.
By: /s/ DIGBY X. XXXXXX
--------------------------------------
Name: Digby X. Xxxxxx
Title: Executive Vice President
