AMENDMENT NO. 2 TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "AMENDMENT") dated as of
July 31, 1998, 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").
WITNESSETH:
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 (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, and the Lenders have agreed, that the
Credit Agreement be amended to make certain modifications therein, all as more
specifically set forth below;
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. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of
the conditions precedent set forth in SECTION 2 hereof, and effective as of
the Effective Date (as hereinafter defined), the Credit Agreement is hereby
amended as follows:
1.1 Section 1.01 of the Credit Agreement is hereby amended by deleting
in their entirety the defined terms "PLEDGE AGREEMENTS", "PLEDGED STOCK", and
"SWING LINE LENDER" and their accompanying definitions, and substituting in
lieu thereof the following defined terms and accompanying definitions:
"PLEDGE AGREEMENTS" shall mean, collectively, (i) that certain
Pledge and Security Agreement from Borrower in favor of the Collateral
Agent in respect of shares of Vari-Lite
Asia, Inc., (ii) that certain Deed of Pledge from Borrower in favor of
the Collateral Agent in respect of shares of Vari-Lite Europe Holdings
Limited, and (iii) each other pledge agreement, security agreement, deed
of charge, and similar instrument from Borrower or any of its
Subsidiaries in favor of the Collateral Agent delivered pursuant to the
requirements of Section 6.10 hereof, in each case as the same may be
amended, restated and supplemented from time to time.
"PLEDGED STOCK" shall mean, collectively, (i) not less than 65% of
all issued and outstanding capital stock, together with not less than 65%
of all warrants, stock options, and other purchase and conversion rights
in respect of such capital stock, of Vari-Lite Europe Holdings Limited
and Vari-Lite Asia, Inc., and (ii) not less than 65% of all issued and
outstanding capital stock or other equity or ownership interests,
together with not less than 65% of all warrants, options, and other
purchase and conversion rights in respect of such capital stock or other
equity or ownership interests, of each other Subsidiary of Borrower whose
capital stock or other equity or ownership interests are subject to a
Pledge Agreement.
"SWINE LINE LENDER" shall mean SunTrust Bank, Atlanta, or any
subsequent Lender extending to Borrower the Swing Line Commitment
hereunder.
1.2 Section 1.01 of the Credit Agreement is hereby amended by adding
the following defined terms and accompanying definitions in proper
alphabetical order:
"CONSOLIDATED TANGIBLE ASSETS" shall mean, at any time, the
aggregate amount of all assets (including, without limitation, the
capitalized value of any leasehold interest under any capital lease) of
the Consolidated Companies, determined at such time in accordance with
GAAP after eliminating inter-company transactions, except (i) deferred
assets and intangible assets, (ii) patents, copyrights, trademarks, trade
names, franchises, goodwill, organizational expense, experimental expense
and other similar intangible assets, (iii) Investments not permitted
under Section 7.04, and (iv) unamortized debt discount and expense.
"NON-MATERIAL FOREIGN SUBSIDIARIES" shall mean, as of any date,
those Foreign Subsidiaries that, in the aggregate, have neither (i)
contributed more than ten percent (10%) of the Consolidated EBITDA of the
Consolidated Companies for the period of four fiscal quarters most
recently ended as of such date, nor (ii) had more than ten percent (10%)
of the Consolidated Tangible Assets of the Consolidated Companies as of
such date.
1.3 Section 2.03 of the Credit Agreement is hereby amended
by deleting the second sentence of subsection (b) thereof, and substituting in
lieu thereof the following sentence:
The aggregate principal amount of each Swing Line Borrowing shall
not be less than $100,000 or a greater integral multiple of $1,000.
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1.4 Section 6.07 of the Credit Agreement is hereby amended by deleting
subsection (c) thereof and substituting in lieu thereof the following
subsection (c):
(c) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of a member of Senior Management of Borrower (i) to the
effect that, based upon a review of the activities of the Consolidated
Companies and such financial statements during the period covered
thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, (ii)
demonstrating in reasonable detail compliance as at the end of such
fiscal year or such fiscal quarter with Section 6.08 and Sections 7.01
through 7.05, and (iii) listing (by jurisdiction of incorporation) (x)
the percentage of Consolidated EBITDA for the period of four fiscal
quarters then most recently ended, and (y) the percentage of Consolidated
Tangible Assets (as of the date of the balance sheet then being
delivered), in each case attributable to the Foreign Subsidiaries
incorporated under the laws of such jurisdiction;
1.5 Section 6.10 of the Credit Agreement is hereby amended by deleting
said Section 6.10 in its entirety and substituting in lieu thereof the
following Section 6.10:
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL.
(a) Not later than September 15, 1998, deliver to the Collateral
Agent, for the benefit of the Lenders, duly executed Pledge Agreements
with respect to the Pledged Stock, together with such certificates as may
evidence such Pledged Stock, with appropriate stock powers and
endorsements, together with such opinions, officer's certificates and
other evidence as to the enforceability and priority of the Liens granted
thereby as may be requested by the Agent, all in form and substance
satisfactory to the Agent.
(b) Promptly after (i) the formation or acquisition of any
Subsidiary of Borrower not listed on SCHEDULE 5.01, (ii) the
domestication of any Foreign Subsidiary of Borrower that is a Subsidiary,
or (iii) the occurrence of any other event creating a new Subsidiary of
Borrower, Borrower shall execute and deliver, and cause to be executed
and delivered the following documents, in each case in form and substance
satisfactory to the Agent: (x) a Guaranty Agreement from each such
Subsidiary that is not a Foreign Subsidiary, together with related
documents of the kind described in Section 4.01(d), (e), (f), (g), (h),
and (k), and (y) a Pledge Agreement with respect to not less than
sixty-five percent (65%) of the capital stock of one or more Foreign
Subsidiaries (as specified in the immediately following sentence) if such
Foreign Subsidiary or Foreign Subsidiaries are directly owned by Borrower
or a Subsidiary that is not, and is not directly or indirectly controlled
by, a Foreign Subsidiary, together with such certificates as may evidence
such Pledged Stock, with appropriate stock powers and endorsements and
such opinions, officer's certificates and other evidence as to the
enforceability and priority of the Liens granted thereby as may be
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requested by the Agent, PROVIDED, HOWEVER, that Borrower shall not be
required at such time to execute and deliver, or cause to be executed and
delivered, a Pledge Agreement with respect to any capital stock of a
Foreign Subsidiary that may be included as one of the Non-Material Foreign
Subsidiaries without causing the portion of the Consolidated EBITDA or
Consolidated Tangible Assets contributed or possessed by such
Non-Material Foreign Subsidiaries in the aggregate (on a pro forma basis)
to exceed the specified percentage of Consolidated EBITDA or Consolidated
Tangible Assets set forth in the definition of the term "Non-Material
Foreign Subsidiaries." In complying with the requirements set forth in
the immediately preceding sentence, (i) Borrower shall pledge capital
stock of that Foreign Subsidiary or those Foreign Subsidiaries that have
contributed or possessed, or would have contributed or possessed (on a
pro forma basis), the greatest portion of such Consolidated EBITDA or
Consolidated Tangible Assets for the most recently ended fiscal quarter
of Borrower, and (ii) all other Foreign Subsidiaries whose capital stock
shall not have been pledged pursuant to this Section 6.10 shall in the
aggregate qualify (on a pro forma basis) as Non-Material Foreign
Subsidiaries as defined herein.
(c) Promptly after delivery to the Lenders of a certificate
pursuant to Section 6.07(c) indicating that the portion of the
Consolidated EBITDA or the Consolidated Tangible Assets contributed or
possessed by all Foreign Subsidiaries whose capital stock is not then
subject to a Pledge Agreement, in the aggregate, exceeds the specified
percentage of Consolidated EBITDA or Consolidated Tangible Assets set
forth in the definition of the term "Non-Material Foreign Subsidiaries,"
Borrower shall execute and deliver, and cause to be executed and
delivered, a Pledge Agreement with respect to not less than sixty-five
percent (65%) of the capital stock of one or more Foreign Subsidiaries
(as specified in the immediately following sentence) if such Foreign
Subsidiary or Foreign Subsidiaries are directly owned by Borrower or a
Subsidiary that is not, and is not directly or indirectly controlled by,
a Foreign Subsidiary, in each case together with such certificates as may
evidence such Pledged Stock, with appropriate stock powers and
endorsements and such opinions, officer's certificates and other evidence
as to the enforceability and priority of the Liens granted thereby as may
be requested by the Agent, all in form and substance satisfactory to the
Agent. In complying with the requirements set forth in the immediately
preceding sentence, (i) Borrower shall pledge capital stock of that
Foreign Subsidiary or those Foreign Subsidiaries that have contributed or
possessed, or would have contributed or possessed (on a pro forma basis),
the greatest portion of such Consolidated EBITDA or Consolidated Tangible
Assets, and (ii) all other Foreign Subsidiaries whose capital stock have
not been pledged pursuant to this Section 6.10 shall in the aggregate
qualify (on a pro forma basis) as Non-Material Foreign Subsidiaries as
defined herein.
(d) Notwithstanding anything to the contrary set forth herein, for
purposes of Section 6.10(b) and (c) above, the terms "Consolidated
EBITDA" and "Consolidated Tangible Assets", when used with reference to
one or more Foreign Subsidiaries, shall be calculated and determined for
such Foreign Subsidiary or Foreign Subsidiaries and its or their
respective Subsidiaries on a consolidated basis for the period of four
fiscal quarters of
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Borrower then most recently ended (in the case of Consolidated EBITDA)
and as of the most recently ended fiscal quarter of Borrower (in the case
of Consolidated Tangible Assets), in each case in a manner similar to the
calculation and determination of such terms as provided herein with
respect to Borrower and the other Consolidated Companies.
SECTION 2. CONDITIONS OF EFFECTIVENESS. Except as provided in Section 7
hereof with respect to the amendment herein to Section 6.10 of the Credit
Agreement, this Amendment shall become effective as of the date first above
written (the "Effective Date") on the first day when the following conditions
have been satisfied:
(a) This Amendment shall have been executed and delivered by
Borrower, the Lenders, the Agent and the Co-Agent;
(b) A new Swing Line Note substantially in the form of EXHIBIT B
to the Credit Agreement shall have been executed and delivered by
Borrower to SunTrust Bank, Atlanta;
(c) Borrower shall have executed and delivered to the Agent a
certificate of Borrower, dated as of the date hereof, signed by the
Secretary or an Assistant Secretary of Borrower, certifying (i) as to the
names, true signatures and incumbency of the officer or officers of
Borrower authorized to execute and deliver this Amendment and the Swing
Line Note, and (ii) that Borrower's Certificate of Incorporation and
Bylaws attached to such certificate have not been amended or modified and
are in full force and effect as of the date hereof; and
(d) Borrower shall have paid all amounts outstanding under that
certain Swing Line Note, dated as of December 19, 1997, executed by
Borrower in favor of Chase Bank of Texas, N.A. (formerly Texas Commerce
Bank National Association).
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower, without
limiting the representations and warranties provided in the Credit Agreement,
represents and warrants to the Lenders and the Agents as follows:
3.1 The execution, delivery and performance by Borrower of this
Amendment and the Swing Line Note are within Borrower's corporate powers, have
been duly authorized by all necessary corporate action (including any
necessary shareholder action) and do not and will not (a) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the articles of incorporation or by-laws of
Borrower or any indenture, agreement or other instrument to which Borrower is
a party or by which Borrower or any of its properties is bound or (b) be in
conflict with, result in a breach of, or constitute with notice or lapse of
time or both a default under any such indenture, agreement or other instrument.
3.2 Each of this Amendment and the Swing Line Note constitutes the
legal, valid and binding obligation of Borrower, enforceable against Borrower
in accordance with its terms.
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3.3 No Default or Event of Default has occurred and is continuing as of
the Effective Date.
SECTION 4. SURVIVAL. Each of the foregoing representations and warranties
and each of the representations and warranties made in the Credit Agreement
shall be made at and as of the Effective Date. Each of the foregoing
representations and warranties shall constitute a representation and warranty
of Borrower under the Credit Agreement, and it shall be an Event of Default if
any such representation and warranty shall prove to have been incorrect or
false in any material respect at the time when made. Each of the
representations and warranties made under the Credit Agreement (including
those made herein) shall survive and not be waived by the execution and
delivery of this Amendment or any investigation by the Lenders or the Agent or
the Collateral Agent.
SECTION 5. NO WAIVER ETC. Borrower hereby agrees that 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. Borrower
hereby further agrees 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 during 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. In addition, Borrower acknowledges and agrees that it has no
knowledge of any defenses, counterclaims, offsets or objections in its favor
against any Lender with regard to any of the obligations due under the terms
of the Credit Agreement as of the date of this Amendment.
SECTION 6. AFFIRMATION OF COVENANTS. Borrower hereby affirms and restates
as of the date hereof all covenants set forth in the Credit Agreement, as
amended hereby, and such covenants are incorporated by reference herein as if
set forth herein directly.
SECTION 7. RATIFICATION OF CREDIT AGREEMENT; EFFECTIVENESS OF AMENDMENT
TO SECTION 6.10.
(a) Except as expressly amended herein, all terms, covenants and
conditions of the Credit Agreement and the other Loan 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.
(b) The Lenders and Borrower agree that the amendment herein to
Section 6.10 of the Credit Agreement shall be deemed effective as of
April 15, 1998.
SECTION 8. BINDING NATURE. This Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, successors,
successors-in-titles, and assigns.
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SECTION 9. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent and the Collateral Agent in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent and the Collateral Agent with respect thereto and with respect
to advising the Agent and the Collateral Agent as to its rights and
responsibilities hereunder and thereunder. In addition, Borrower shall pay any
and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, and agrees to save the
Agent, the Collateral Agent, the Co-Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes.
SECTION 10. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
SECTION 11. ENTIRE UNDERSTANDING. This Amendment 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 12. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
through their authorized officers as of the date first above written.
VARI-LITE INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice-President - Finance, CFO
SUNTRUST BANK, ATLANTA,
INDIVIDUALLY AND AS AGENT AND
COLLATERAL AGENT
By: /s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Corporate Banking Officer
XXXXX BROTHERS XXXXXXXX & CO.,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Credit Officer
CHASE BANK OF TEXAS, N.A.
(FORMERLY TEXAS COMMERCE BANK
NATIONAL ASSOCIATION)
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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COMERICA BANK-TEXAS
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: Corporate Banking Officer
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