EXHIBIT 10.9
WAIVER, dated as of June 30, 2001 (this "Waiver"), 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Borrowers were required to retain an investment banker
pursuant to Section 4.1 of the Fifth Amendment:
WHEREAS, the Borrowers have not retained such investment banker and
have requested a waiver, until October 1, 2001, of such requirement;
WHEREAS, the Lenders are willing to agree to waive such requirement
until October 1, 2001, 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 until October 1 2001, the
obligation of the Borrowers under Section 4.1 of the Fifth Amendment to retain
(and to cause such investment banker to report to the Lenders) ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney or another firm or individual specializing in providing investment
banking services reasonably satisfactory to the Administrative Agent.
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SECTION 3. MISCELLANEOUS.
3.1 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 IV 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.
3.2 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 Lenders holding at least 66.2/3rd %
of the Available Commitments, the Term Loan Exposure and the Revolving
Credit Exposure and consented to by the Loan Parties (other than the
Borrowers); and
(b) 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.
3.3 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.
3.4 GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
3.5 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.
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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 ▇. ▇▇▇▇▇▇
-------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: President & COO
AUDIO VISUAL SERVICES (NY) CORPORATION
By: /s/ Digby ▇. ▇▇▇▇▇▇
-------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
THE CHASE MANHATTAN BANK
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇.▇. ▇▇▇▇▇
-------------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Managing Director
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
BANK POLSKA KASA OPIEKI S.A.
PEKAO S.A. GROUP, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President,
Senior Lending Officer
BBT FUND, L.P.
By: BBT GENPAR, L.P., Its General Partner
By: BBT-FW, INC., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
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BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
HALCYON RESTRUCTURING FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
ING BARING (US) CAPITAL LLC,
Acting as Agent for
MIDDENBANK CURACAO N.V.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
ML CBO IV (CAYMAN) LTD.
By: Sterling Asset Manager LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
ML CLO XIX STERLING (CAYMAN) LTD.
By: Sterling Asset Manager LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
▇▇▇ CAPITAL FUNDING LP
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
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PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
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▇▇▇ ▇▇▇▇▇▇ SENIOR FLOATING RATE FUND
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
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 ▇. ▇▇▇▇▇▇
---------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
AUDIO VISUAL SERVICES GROUP, INC.
By: /s/ Digby ▇. ▇▇▇▇▇▇
---------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
Chief Operating Officer
VISUAL ACTION HOLDINGS INC.
By: /s/ Digby ▇. ▇▇▇▇▇▇
---------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President & Treasurer
HRI, V.I., INC.
By: /s/ Digby ▇. ▇▇▇▇▇▇
---------------------------------------
Name: Digby ▇. ▇▇▇▇▇▇
Title: Executive Vice President & Treasurer
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