EX-10.10 4 c21582_ex10-10.txt WAIVER - AUGUST 10 - CHASE MANHATTAN BANK EXHIBIT 10.10 WAIVER, dated as of August 10, 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 MERRILL LYNCH 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 Company has advised the Lenders it has failed to achieve the minimum Consolidated Unadjusted EBITDA required by Section 7.01(c) of the Credit Agreement for the 12 month period ending June 30, 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 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 June 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 June 30, 2001. 1 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 75% of the Available Commitments, the Term Loan Exposure 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 10.05 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 June 30, 2001 in accordance with Section 6.01(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 6.01(e) of the Credit Agreement and demonstrating that Consolidated Unadjusted EBITDA for the 12 month period ending on June 30, 2001 was not less than $47,000,000. 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. 2 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 J. DAVIES ---------------------------------- Name: Digby J. Davies Title: Director, President, COO, Acting CFO and Treasurer AUDIO VISUAL SERVICES (NY) CORPORATION BY: /s/: DIGBY J. DAVIES ---------------------------------- Name: Digby J. Davies Title: Executive Vice President, CFO and Treasurer THE CHASE MANHATTAN BANK INDIVIDUALLY AND AS ADMINISTRATIVE AGENT BY: /s/: THOMAS A. DINNEEN ---------------------------------- Name: Thomas A. Dinneen Title: Managing Director 3 BANK POLSKA KASA OPIEKI S.A. PEKAO S.A. GROUP, NEW YORK BRANCH BY: /s/: HARVEY WINTER ------------------------------------------ Name: Harvey Winter Title: Vice President BBT FUND, L.P. BY: BBT GENPAR, L.P., ITS GENERAL PARTNER BY: BBT-FW, INC., ITS GENERAL PARTNER BY: /s/: WILLIAM S. REIMANN ------------------------------------------ Name: William S. Reimann Title: Vice President CONTRARIAN FUNDS, LLC By: Contrarian Capital Management, LLC By: /s/: JANICE M. STANTON ------------------------------------------ Name: Janice M. Stanton Title: Member CREDIT AGRICOLE INDOSUEZ By: /s/:RENE LEBLANC ------------------------------------------ Name: Rene LeBlanc Title: Vice President 4 BANKER'S TRUST COMPANY BY: /s/: PATRICK DOWLING ------------------------------------------ Name: Patrick Dowling Title: Vice President HALCYON RESTRUCTURING FUND, L.P. BY: /s/: JAMES W. SYKES ------------------------------------------ Name: James W. Sykes Title: Principal ING BARING (US) CAPITAL LLC, ACTING AS AGENT FOR MIDDENBANK CURACAO N.V. BY: /s/: Illegible ------------------------------------------ Name: Illegible Title: Vice President ML CLO X1X STERLING (CAYMAN) LTD. By: Highland Capital Management, L.P. as Collateral Manager and successor in interest to Sterling Asset Manager LLC BY: /s/: TODD TRAVERS ------------------------------------------ Name: Todd Travers Title: Senior Portfolio Manager PAM CAPITAL FUNDING LP By: Highland Capital Management, L.P. as Collateral Manager BY: /s/: TODD TRAVERS ------------------------------------------ Name: Todd Travers TITLE: SENIOR PORTFOLIO MANAGER 5 ML CBO IV (CAYMAN) LTD. By: Highland Capital Management, L.P. as Collateral Manager BY: /s/: TODD TRAVERS ----------------------------------------- Name: Todd Travers Title: Senior Portfolio Manager PAMCO CAYMAN LTD. By: Highland Capital Management, L.P. as Collateral Manager BY: /s/: TODD TRAVERS ----------------------------------------- Name: Todd Travers Title: Senior Portfolio Manager NOMURA SPECIAL SITUATIONS INVESTMENT TRUST By: Wilmington Trust Company as Owner Trustee By: /s/: David A. Vaneskey, Jr. ----------------------------------------- Name: David A. Vaneskey, Jr. Title: Vice President T. ROWE PRICE RECOVERY FUND II, L.P. BY: /s/: KIM Z. GOLDEN ----------------------------------------- Name: Kim Z. Golden Title: Managing Director 6 VAN KAMPEN SENIOR FLOATING RATE FUND By: Van Kampen Investment Advisory Corp. BY: /s/: DARVIN D. PIERCE -------------------------------------------- Name: Darvin D. Pierce Title: Principal VAN KAMPEN PRIME RATE INCOME TRUST By: Van Kampen Investment Advisory Corp. BY: /s/: DARVIN D. PIERCE -------------------------------------------- Name: Darvin D. Pierce Title: Principal VAN KAMPEN SENIOR INCOME TRUST By: Van Kampen Investment Advisory Corp. BY: /s/: DARVIN D. PIERCE -------------------------------------------- Name: Darvin D. Pierce Title: Principal 7 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 J. DAVIES --------------------------------------------- Name: Digby J. Davies Title: Executive Vice President, CFO and Treasurer AUDIO VISUAL SERVICES GROUP, INC. BY: /s/: DIGBY J. DAVIES --------------------------------------------- Name: Digby J. Davies Title: Executive Vice President and Treasurer VISUAL ACTION HOLDINGS INC. BY: /s/: DIGBY J. DAVIES --------------------------------------------- Name: Digby J. Davies Title: Executive Vice President and Treasurer HRI, V.I., INC. BY: /s/: DIGBY J. DAVIES --------------------------------------------- Name: Digby J. Davies Title: Executive Vice President and Treasurer 8