Amendment No. 1 to Credit Agreement
dated as of
June 30, 2000
by and among
Video Services Corporation,
and its direct and indirect
subsidiaries listed on the signature pages hereto, as
Borrower and/or Credit Parties
The Lenders Party Hereto,
as Lenders
General Electric Capital Corporation,
as Term Agent
and
Administrative Agent
and
Keybank National Association,
as Revolver Agent
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Amendment No. 1 to Credit Agreement
This Amendment No. 1 to Credit Agreement (the"Amendment") dated as of June
30, 2000 ("Amendment Closing Date"), made by and among Video Services
Corporation, a Delaware corporation, and each of its direct and indirect
subsidiaries listed on the signature pages hereto as "Borrowers" (collectively,
the "Borrowers" and each individually as the "Borrower"), each of the other
credit parties hereto (the Borrower and such other credit parties, "Credit
Parties"), each of the Lenders signatory hereto and those Persons who become
lenders in accordance with the terms and conditions of the Credit Agreement
referred to below (each a "Lender," and collectively, "Lenders"), General
Electric Capital Corporation, a New York corporation ("G.E. Capital"), as Term
Agent and Administrative Agent under the Credit Agreement, and KeyBank National
Association ("KeyBank"), as revolver agent for the applicable Lenders under the
Credit Agreement (collectively, with G.E. Capital, the "Agents").
Whereas, Borrowers, Credit Parties, Agents and Lenders are parties to that
certain Credit Agreement dated as of June 30, 2000 (the "Original Credit
Agreement"; the Original Credit Agreement, as amended hereby, and as same may
hereafter be amended from time to time is referred to as the "Credit
Agreement");
Whereas, Borrowers, Credit Parties, Agents and Lenders are agreeable to
making certain amendments and revisions to the Original Credit Agreement upon
the terms and conditions set forth herein.
Now, Therefore, in consideration of the foregoing premises, and the mutual
covenants contained herein, the parties hereto hereby agree that the foregoing
recitals are true and correct and incorporated herein, and as follows:
Section 1. AMENDMENTS AND CORRECTIONS TO OUTSTANDING INDEBTEDNESS,
LIENS, WAIVER OF EXISTING DEFAULTS AND RESERVATION OF
RIGHTS.
(a) (i) Part 1.1 (a)(ii)(A) of Section 1.1 of the Original Credit Agreement
is hereby amended by replacing "39 months after the Closing Date" with
"July 1, 2003".
(ii) Parts 1.1(b)(i) and (ii) and 1.1(c)(iii) of Section 1.1
of the Original Credit Agreement are hereby amended by the deletion of
the date "July 1, 2000" set forth in each section and substitution of
the date October 1, 2000 therefor.
(iii) Section 1.1(c)(iii) is hereby amended by replacing the
reference to 50% in the phrase "1/4 of 50% of the remaining principal
balance as of July 1, 2006" with 100%, and the date April 1, 2007 in
the phrase "July 1, 2006 and on the first day of each three month
period thereafter through and including April 1, 2007" with the date
July 1, 2007.
(iv) The definition of the term "Commitment Termination Date"
set forth in Annex "A" to Credit Agreement is hereby amended by
replacing "39 months" with "July 1, 2003" in each of part (i)(A) and
part (ii)(A) of such definition, and by replacing "63 months" with
"July 1, 2005" in part (iii)(A) of such definition.
(v) The definitions of "Working Capital Termination Date" is
hereby amended by deleting the number "39" therefrom and substituting
the number "36" therefor.
(b) Each Borrower and each Credit Party acknowledges and agrees that it is
truly and justly indebted to Agents and Lenders under the Credit Agreement
and the other Loan Documents. Each Borrower and other Credit Party agrees
that it has no, and hereby expressly waives all, offsets, defenses or
counterclaims to the payment of the Obligations or the performance by it
under the Credit Agreement and the other Loan Documents. Further, each
Borrower and Credit Party agrees that it has no, and hereby expressly
waives all, claims of any nature whatsoever against the Agents or the
Lenders, their respective parents, subsidiaries, affiliates, divisions,
officers, directors, employees, agents, counsel, stockholders, successors
or assigns, arising out of or related to the Obligations, the Loan
Documents or otherwise.
(c) Borrower acknowledges and agrees that each Agent and each Lender
continue to reserve and preserve any and all rights and remedies under all
applicable Loan Documents and law, and no failure, delay or discontinuance
on the part of either Agent or any Lender in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right power or
remedy, and that entry into this Amendment shall not obligate the Lender
Group to hereafter amend any term or condition of the Loan Documents, or to
consent to any departure from, or to waive, any of the terms and conditions
of the Loan Documents or any Default or Event of Default.
(d) In addition to any other Defaults or Events of Default which may occur
under the Loan Documents, the occurrence of any of the following shall
constitute an Event of Default: (i) any failure by a Borrower or a Credit
Party to observe or perform any of the terms or conditions to be observed
or performed pursuant to this Amendment, and (ii) any representation or
warranty made by any Borrower or Credit Party in this Amendment, shall be
false, misleading, or incomplete, in any material respect as of the time
when made.
Section 2. Representations, Warranties and Covenants; Confirmation
of Certain Loan Documents.
(a) Without limiting the generality of the provisions of this Section 2,
each Credit Party hereby represents and warrants to Agents and Lenders as
follows:
(i) The representations and warranties of each Credit Party contained
in the Credit Agreement, as amended hereby, the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with the Credit Agreement were true and correct when made
and continue to be true and correct on the date hereof (except as such
representations and warranties are affected by the transactions
contemplated hereby and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate
expressly to any earlier date) and, immediately after giving effect to
this Amendment and at all times thereafter, no Default or Event of
Default has occurred and is continuing.
(ii) The execution, delivery and performance by each Credit Party of
this Amendment and the transactions contemplated hereby (A) are within
the corporate authority of each Credit Party, (B) have been duly
authorized by all necessary corporate proceedings, (C) do not conflict
with or result in any breach or contravention of any provisions of
law, statute, rule or regulation to which each Credit Party or any of
their Subsidiaries are subject or any judgment, order, writ,
injunction, license or permit applicable to each Credit Party or any
of their Subsidiaries, and (D) do not conflict with any provision of
the corporate charter or by-laws of, or any agreement or other
instrument binding upon, each Credit Party or any of their
Subsidiaries.
(iii) This Amendment, the Credit Agreement and the other Loan
Documents as amended hereby constitute the legal, valid and binding
obligations of each Credit Party, enforceable against each Credit
Party in accordance with their respective terms.
(iv) Each party executing this Amendment (other than Agent or any
Lender) agrees that it shall and shall cause each other party hereto
(other than Agent or any Lender) to, at such Persons expense and upon
request of Agent, duly execute and deliver, or cause to be duly
executed and delivered, to Agent and Lender, such further instruments
and do and cause to be done such further acts as may be necessary or
proper in the reasonable opinion of Agent to carry out more
effectively the provisions and purposes of this Amendment or any other
Loan Document.
(b) Without limiting the generality of the provisions of this Section 2:
(i) Each Credit Party hereby ratifies and confirms each of the
respective Collateral Documents and pledges of security interests
granted thereby to secure the Obligations of each Credit Party under
the Credit Agreement, as amended hereby, and the Notes.
(ii) Each Credit Party who is a Guarantor hereby ratifies and confirms
that its respective Guaranty, together with any documents related
thereto, the obligations undertaken thereunder, the security interests
granted thereby and the waiver of rights effectuated thereby shall
remain in full force and effect and extend to the Credit Agreement, as
amended hereby, and to the Notes.
(iii) Except as expressly otherwise provided herein, all of the terms
and conditions of the Credit Agreement and other Loan Documents shall
remain in full force and effect.
Section 3. CONDITIONS PRECEDENT.
(a) Conditions to Initial Effectiveness. Neither the Agents nor any Lender
shall be obligated to make or to take, fulfill or perform any action
hereunder, until and unless this Amendment or counterparts hereof shall
have been duly executed by, and delivered to, each Credit Party, Agent and
Lenders.
Section 4. Miscellaneous.
(a) Governing Law. Except as otherwise expressly provided in any of the
Loan Documents, in all respects, including all matters of construction,
validity and performance, the Amendment and the obligations shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York applicable to contracts made and performed in that State
and any applicable laws of the United States of America. Each Credit Party
hereby consents and agrees that the State or federal courts located in New
York county, city of New York, New York shall have exclusive jurisdiction
to hear and determine any claims or disputes between or among the Credit
Parties, Agent or any Lender pertaining to this Amendment or any of the
other Loan Documents or to any matter arising out of or relating to this
Amendment or any of the other Loan Documents, provided, that Agent, each
Lender and the Credit Parties acknowledge that any appeals from those
courts may have to be heard by a court located outside of New York county,
city of New York, New York and, provided, further nothing in this Amendment
shall be deemed or operate to preclude Lender from bringing suit or taking
other legal action in any other jurisdiction to realize on the Collateral
or any other security for the Obligations, or to enforce a judgment or
other court order in favor of Agent or any Lender. Each Credit Party
expressly submits and consents in advance to such jurisdiction in any
action or suit commenced in any such court, and each Credit Party hereby
waives any objection which such Credit Party may have based upon lack of
personal jurisdiction, improper venue or forum non conveniens and hereby
consents to the granting of such legal or equitable relief as is deemed
appropriate by such court. Each Credit Party hereby waives personal service
of the summons, complaint and other process issued in any such action or
suit and agrees that service of such summons, complaints and other process
may be made by registered or certified mail addressed to such Credit Party
at the address set forth in Annex H of the Credit Agreement and that
service so made shall be deemed completed upon the earlier of such Credit
Party's actual receipt thereof or three (3) days after deposit in the U.S.
mails, proper postage prepaid.
(b) Waiver of Jury Trial. Because disputes arising in connection with
complex financial transactions are most quickly and economically resolved
by an experienced and expert person and the parties wish applicable State
and federal laws to apply (rather than arbitration rules), the parties
desire that their disputes be resolved by a judge applying such applicable
laws. Therefore, to achieve the best combination of the benefits of the
judicial system and of arbitration, the parties hereto waive all right to
trial by jury in any action, suit, or proceeding brought to resolve any
dispute, whether sounding in contract, tort or otherwise, among Lender and
any Credit Party arising out of, connected with, related to, or incidental
to the relationship established among them in connection with, this
Amendment or any of the other Loan Documents or the transactions related
thereto.
(c) Counterparts. This Amendment may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute
one agreement.
(d) Construction of Amendment, etc. This Amendment constitutes a part of,
and shall be construed in connection with, the Credit Agreement, and all
terms, covenants, conditions, representations and warranties therein shall
remain in full force in effect and are incorporated herein by reference as
if fully set forth herein. This Amendment represents the entire agreement
and understanding concerning the subject matter hereof between the parties
hereto, and supersedes all other prior agreements, understandings,
negotiations and discussions, representations, warranties, commitments,
proposals, offers and contracts concerning the subject matter hereof,
whether oral or written. In the event of any inconsistencies between the
provisions of this Amendment and elsewhere in the Credit Agreement, the
provisions of this Amendment shall in all respects govern and control.
(e) No Novation; Ratification. This Amendment is not a novation of the
Credit Agreement or other existing Loan Documents except as expressly set
forth in this Amendment. The parties agree that except as modified herein,
all terms, conditions, rights and obligations under the Credit Agreement
and all other Loan Documents are hereby reaffirmed and shall otherwise
remain in full force and effect as originally written and agreed. The Loan
Documents, including, without limitation, this Amendment and any other Loan
Documents entered into in connection herewith shall be construed to give
Agents and Lenders the greatest possible cumulative rights and remedies;
should there by any apparent conflict between this Amendment, the Credit
Agreement or any other Loan Documents, this principle of construction shall
apply.
Section 5. Defined Terms.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement or the other Loan Documents.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first written above.
BORROWERS:
VIDEO SERVICES CORPORATION
as Borrower, Borrower Representative and
Credit Party
/s/ Michael E. Fairbourne Video Services Corporation
Michael E. Fairbourne Senior Vice President - Administration
/s/ Michael E. Fairbourne AF Associates Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne AFA Products Group, Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne Audio Plus Video International, Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne Atlantic Satellite Communications, Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne Cabana Corp.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne International Post Finance Limited
Michael E. Fairbourne President
/s/ Michael E. Fairbourne International Post Leasing Limited
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne Manhattan Transfer/Edit, Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne The Post Edge, Inc.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne Video Rentals, Inc.
Michael E. Fairbourne Vice President - Administration
<PAGE>
CREDIT PARTIES:
Each Credit Party indicated below hereby acknowledges and consents to the
terms and conditions of the foregoing Amendment. Each Credit Party agrees that
its respective Guaranty dated June 30, 2000, made by the Credit Parties in favor
of Lenders and all other Loan Documents to which it is a party is, and shall
remain, in full force and effect until all Loan Documents have been terminated
and all Obligations have been paid and satisfied in full.
As a further inducement to Agents and Lenders entering into the Amendment,
each such Credit Party does hereby release and forever discharge Agents and
Lenders and all participants, if any, with Lenders in the Obligations, and each
and every one of their directors, officers, employees, representatives, legal
counsel, agents, parents, subsidiaries and affiliates, and persons employed or
engaged by them, whether past or present (hereinafter collectively referred to
as the "Lender Releasees"), of and from all actions, agreements, damages,
judgments, claims, counterclaims, and demands whatsoever, liquidated or
unliquidated, contingent or fixed, determined or undetermined, at law or in
equity, which the Borrowers, the other Credit Parties, or any of them, have had,
now have, or may have against the Lender Releasees, or any of them, for, upon or
by reason of any matter, cause or thing whatsoever to the date of the Amendment,
whether arising out of, related to or pertaining to the Obligations, the
Guaranty, or any other Loan Document, or otherwise, including without
limitation, the negotiation, closing, administration, and funding of the
Obligations and the Loan Documents, any declaration of, or actions or inactions
taken or not taken in respect of, the Existing Events of Default, or any other
Defaults or Events of Default, or any collection or recovery efforts taken in
respect of the Obligations.
To this effect, each Credit Party named below represents, warrants,
acknowledges and agrees that it has no and hereby waives all, claims, defenses,
offsets and counterclaims it has had, now has, or may have to the payment and
performance of its respective Obligations under its respective Guaranty.
Each Credit Party named below acknowledges that the provisions set forth
above are a material inducement for Agents and Lenders entering into the
Amendment.
/s/ Michael E. Fairbourne IPL 235 Corp.
Michael Fairbourne President
/s/ Michael E. Fairbourne VSC EXPRESS CoURIER, INC.
Michael E. Fairbourne Vice President - Administration
/s/ Michael E. Fairbourne VSC CORPORATION
Michael E. Fairbourne Vice President - Administration
LENDERS:
/s/ Ann Naegele GENERAL ELECTRIC CAPITAL CORPORATION,
Ann Naegele as Term Agent
Vice President - Risk Manager
/s/ Craig Kineade KEYBANK NATIONAL ASSOCIATION,
Craig Kineade as Revolver Agent
Vice President
/s/ Ann Naegele GENERAL ELECTRIC CAPITAL CORPORATION,
Ann Naegele as Lender
Vice President - Risk Manager
/s/ Craig Kineade KEYBANK NATIONAL ASSOCIATION,
Craig Kineade as Lender
Vice President
/s/ Andrew DeTullio SUMMIT BANK,
Andrew DeTullio as Lender
Vice President
