Contract
Exhibit 10.3
SCHEDULE 2.1
BRAND
SERVICES, INC.
FIRST
AMENDMENT AND LIMITED WAIVER
This
FIRST
AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"Amendment") is
dated as of February 3, 2004, and entered into by and among BRAND
SERVICES, INC. ("Borrower"),
THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
("Lenders"),
JPMORGAN
CHASE BANK, as
syndication agent for Lenders (in such capacity "Syndication
Agent"),
CREDIT
SUISSE FIRST BOSTON, as
administrative agent for Lenders (in such capacity, "Administrative
Agent") and,
together with X.X. Xxxxxx Securities Inc. ("JPMSI"), joint
lead arranger and book manager (collectively with JPMSI, in such capacity, the
"Co-Arrangers"), and
ANTARES
CAPITAL CORPORATION and
GENERAL
ELECTRIC CAPITAL CORPORATION, as
co-documentation agents for Lenders (collectively, in such capacity,
"Co-Documentation Agents"), and,
solely for purposes of Section 5 hereof, the CREDIT
SUPPORT PARTIES LISTED ON THE SIGNATURE PAGES HEREOF, and is
made with reference to that certain Credit Agreement dated as of
October 16, 2002, by and among Borrower, Lenders, Syndication Agent,
Administrative Agent, Co-Arrangers, and Co-Documentation Agents (as in effect on
the date hereof, but prior to giving effect to this Amendment, the "Credit
Agreement").
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement as amended by this Agreement (the
"Amended
Credit Agreement").
R
E C I T A L S
WHEREAS,
Borrower and Lenders desire to amend the Credit Agreement (i) to reduce the
interest rate applicable to the Term B Loans, (ii) to increase the sublimit
for Revolving Letters of Credit by an aggregate amount of $15,000,000,
(iii) to add a new synthetic letter of credit facility with an aggregate
commitment of up to $15,000,000, (iv) to modify the permitted acquisitions
covenant to permit the [Target] Acquisition, and (v) to make certain other
amendments as set forth below, in each case on and subject to the terms,
conditions and agreements set forth herein;
NOW,
THEREFORE, in
consideration of the representations, warranties, covenants and agreements
herein contained, the parties hereto agree as follows:
| SECTION 1. |
AMENDMENTS TO CREDIT
AGREEMENT
|
| 1.1 |
Amendments
to Section 1: Definitions |
A. Subsection 1.1
of the Credit Agreement is hereby amended by adding thereto the following
definitions, which shall be inserted in proper alphabetical order:
"
"Credit-Linked
Deposit" means,
as to each Synthetic Letter of Credit Lender, the cash deposit made by such
Synthetic Letter of Credit Lender pursuant to subsection 3.6A (or made by
its (direct or indirect) predecessor in interest and acquired by such Synthetic
Letter of Credit Lender upon assignment to it of all or any portion of another
Synthetic Letter of Credit Lender’s rights and obligations under such other
Lender’s Synthetic Letter of Credit Commitment pursuant to subsection 2.9
or 10.1B, as the case may be), as such deposit may be (i) reduced from time
to time pursuant to the terms of this Agreement and (ii) reduced or
increased from time to time pursuant to assignments to or by such Synthetic
Letter of Credit Lender pursuant to subsection 2.9 or 10.1B. The initial
amount of each Synthetic Letter of Credit Lender’s Credit-Linked Deposit shall
be equal to the amount of its Synthetic Letter of Credit Commitment on the First
Amendment Effective Date (or on the date when it becomes a Synthetic Letter of
Credit Lender pursuant to subsection 2.9 or 10.1B).";
"
"First
Amendment Effective Date" has the
meaning ascribed to such term in the First Amendment to this Agreement.";
"
"First
Amendment Transaction Costs" means
the fees, costs and expenses payable by Parent and its Subsidiaries on or before
the First Amendment Effective Date in connection with the transactions
contemplated by the First Amendment.";
"
"Interest
Rate Differential" means
an amount (expressed as a percentage per annum) determined from time to time by
the Administrative Agent in consultation with the Borrower that represents the
excess of the Adjusted LIBOR Rate at the time of determination over the rate of
return per annum payable to the Synthetic Letter of Credit Lenders by the
Administrative Agent on the Credit-Linked Deposits at such time. On the First
Amendment Effective Date, the Interest Rate Differential is 0.10% per annum.";
"
"LC
Facility Notes" means
(i) the promissory notes of Borrower issued pursuant to
subsection 2.1E(i)(1)(c) on the Closing Date and/or (ii) any
promissory notes issued by Borrower pursuant to the second to last sentence of
subsection 10.1B(i) in connection with assignments of the LC Facility
Commitments and LC Facility Loans of any LC Facility Lenders, in each case
substantially in the form of Exhibit VIII annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.";
"
"Lender
Deposit" means
an LC Facility Certificate of Deposit or a Credit-Linked Deposit.";
"
"Synthetic
Letter of Credit" or
"Synthetic
Letters of Credit" means
Standby Letters of Credit issued or to be issued by Synthetic Letter of Credit
Issuing Lenders pursuant to subsection 3.1.";
-2-
"
"Synthetic
Letter of Credit Commitment" means
the commitment of a Synthetic Letter of Credit Lender to acquire participations
in Synthetic Letters of Credit and make Synthetic Letter of Credit Loans
pursuant to subsection 2.1A(vi), and "Synthetic
Letter of Credit Commitments" means
such commitments of all Synthetic Letter of Credit Lenders in the aggregate.";
"
"Synthetic
Letter of Credit Exposure" , with
respect to any Synthetic Letter of Credit Lender, means, as of any date of
determination (i) prior to the termination of the Synthetic Letter of
Credit Commitments, that Synthetic Letter of Credit Lender’s Synthetic Letter of
Credit Commitment, and (ii) after the termination of the Synthetic Letter
of Credit Commitments, the sum of (a) the aggregate outstanding principal
amount of the Synthetic Letter of Credit Loans of that Synthetic Letter of
Credit Lender plus
(b) in the event that Synthetic Letter of Credit Lender is a Synthetic
Letter of Credit Issuing Lender, the aggregate Synthetic Letter of Credit Usage
in respect of all Synthetic Letters of Credit issued by that Synthetic Letter of
Credit Lender (in each case net of any participations purchased by other
Synthetic Letter of Credit Lenders in such Synthetic Letters of Credit or in any
unreimbursed drawings thereunder) plus
(c) the aggregate amount of all participations purchased by that Synthetic
Letter of Credit Lender in any outstanding Synthetic Letters of Credit or any
unreimbursed drawings under any Synthetic Letters of Credit.";
"
"Synthetic
Letter of Credit Issuing Lender" means
the Synthetic Letter of Credit Lender that agrees or is otherwise obligated to
issue such Letter of Credit, determined as provided in subsection 3.1B.";
"
"Synthetic
Letter of Credit Lender" means a
Lender that has a Synthetic Letter of Credit Commitment and/or that has an
outstanding Synthetic Letter of Credit Loan.";
"
"Synthetic
Letter of Credit Loans" means
the loans deemed made by Synthetic Letter of Credit Lenders to Borrower pursuant
to subsection 3.3B and subsection 3.3C.";
"
"Synthetic
Letter of Credit Notes" means
(i) the promissory notes of Borrower issued pursuant to
subsection 2.1E(iii) on the First Amendment Effective Date and/or
(ii) any promissory notes issued by Borrower pursuant to the second to last
sentence of subsection 10.1B(i) in connection with assignments of the
Synthetic Letter of Credit Commitments and Synthetic Letter of Credit Loans of
any Synthetic Letter of Credit Lenders, in each case substantially in the form
of Exhibit VIII-A annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.";
"
"Synthetic
Letter of Credit Reimbursement Date" has the
meaning assigned to that term in subsection 3.3B(iii).";
"
"Synthetic
Letter of Credit Usage" means,
as at any date of determination, the sum of (i) the maximum aggregate
amount which is or at any time thereafter may become available for drawing under
all Synthetic Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Synthetic Letters of Credit
honored by Synthetic Letter of Credit Issuing Lenders and not theretofore
reimbursed by Borrower."; and
-3-
"
"[Target]
Acquisition" means
the acquisition of all or substantially all of the stock or assets (whether by
merger, consolidation, purchase or otherwise) of [Target].";
"
"[Target]
Acquisition Effective Date" has the
meaning ascribed to such term in subsection 7.3(xii).";
"
"[Target]
Acquisition Documents" means
all principal documents executed by Borrower and/or any of its Affiliates in
connection therewith, in the form delivered to Administrative Agent and Lenders
prior to the [Target] Acquisition Effective Date, with such modifications
thereto prior to execution and delivery thereof as may be reasonably
satisfactory to Administrative Agent, and as such documents may be amended,
supplemented or otherwise modified after the execution thereof to the extent
permitted under subsection 7.14C.";
"
"Total
Utilization of Synthetic Letter of Credit Commitments" means,
as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Synthetic Letter of Credit Loans plus (ii) the
Synthetic Letter of Credit Usage.".
B. Subsection 1.1
of the Credit Agreement is hereby further amended by deleting the definitions of
"Class", "Issuing Lender", "Letter of Credit", "Loan", "Pro Rata Share",
"Requisite Class Lenders", and "Requisite Lenders" and inserting in lieu thereof
the following definitions:
"
"Class" means,
as applied to Lenders, each of the following five classes of Lenders:
(i) Lenders having Term B Loan Exposure, (ii) Lenders having
Supplemental Term Loan Exposure, if any, (iii) Lenders having Revolving
Loan Exposure, (iv) Lenders having LC Facility Exposure, and
(v) Lenders having Synthetic Letter of Credit Exposure.";
"
"Issuing
Lender" means
any Revolving Issuing Lender, LC Facility Issuing Lender or Synthetic Letter of
Credit Issuing Lender.";
"
"Letter
of Credit" and
"Letters
of Credit" means
(i) Revolving Letters of Credit, (ii) LC Facility Letters of Credit
and (iii) Synthetic Letters of Credit.";
"
"Loan" or
"Loans" means
one or more of the Term B Loans, Supplemental Term Loans, Revolving Loans, Swing
Line Loans, LC Facility Loans or Synthetic Letter of Credit Loans or any
combination thereof.";
-4-
"
"Pro
Rata Share" means
(i) with respect to all payments, computations and other matters relating
to the Term B Loan Commitment or the Term B Loan of any Lender, the percentage
obtained by dividing (x) the Term B Loan Exposure of that Lender by
(y) the aggregate Term B Loan Exposure of all Lenders, (ii) with
respect to all payments, computations and other matters relating to the
Supplemental Term Loans of any Lender, the percentage obtained by dividing
(x) the Supplemental Term Loan Exposure of that Lender by (y) the
aggregate Supplemental Term Loan Exposure of all Lenders, (iii) with
respect to all payments, computations and other matters relating to the
Revolving Loan Commitment or the Revolving Loans of any Lender or any Revolving
Letters of Credit issued or participations therein deemed purchased by any
Lender or any assignments of any Swing Line Loans deemed purchased by any
Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure
of that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders,
(iv) with respect to all payments, computations and other matters relating
to the LC Facility Commitment or the LC Facility Loans of any LC Facility Lender
or any LC Facility Letters of Credit issued or participations therein deemed
purchased by any LC Facility Lender, the percentage obtained by dividing
(x) the LC Facility Exposure of that LC Facility Lender by (y) the
aggregate LC Facility Exposure of all Lenders, (v) with respect to all
payments, computations and other matters relating to the Synthetic Letter of
Credit Commitment or the Synthetic Letter of Credit Loans of any Synthetic
Letter of Credit Lender or any Synthetic Letters of Credit issued or
participations therein deemed purchased by any Synthetic Letter of Credit
Lender, the percentage obtained by dividing (x) the Synthetic Letter of
Credit Exposure of that Synthetic Letter of Credit Lender by (y) the
aggregate Synthetic Letter of Credit Exposure of all Lenders, and (vi) for
all other purposes with respect to each Lender, the percentage obtained by
dividing (x) the sum of the Term B Loan Exposure of that Lender
plus the
Supplemental Term Loan Exposure of that Lender plus the
Revolving Loan Exposure of that Lender plus the LC
Facility Exposure of that Lender plus the
Synthetic Letter of Credit Exposure of that Lender by (y) the sum of the
aggregate Term B Loan Exposure of all Lenders plus the
aggregate Supplemental Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders plus the
aggregate LC Facility Exposure of all Lenders plus the
aggregate Synthetic Letter of Credit Exposure of all Lenders, in any such case
as the applicable percentage may be adjusted by assignments permitted pursuant
to subsection 10.1. The initial Pro Rata Share of each Lender for purposes
of each of clauses (i), (iii) and (iv) of the preceding sentence was set
forth opposite the name of that Lender on Schedule 2.1 annexed
to this Agreement as it was in effect on the Closing Date, and the Pro Rata
Share of each Lender as of the First Amendment Effective Date for purposes of
each of clauses (i), (iii), (iv) and (v) of the preceding sentence is set
forth opposite the name of that Lender on Schedule 2.1 annexed
to this Agreement as amended by the First Amendment.";
"
"Requisite
Class Lenders" means,
at any time of determination, (i) for Lenders holding Term B Loans, Lenders
holding more than 50% of the aggregate Term B Loan Exposure of all Lenders,
(ii) for Lenders holding Supplemental Term Loans, Lenders holding more than
50% of the aggregate Supplemental Term Loan Exposure of all Lenders,
(iii) for Lenders holding Revolving Loan Commitments, Lenders holding more
than 50% of the aggregate Revolving Loan Exposure of all Lenders, (iv) for
Lenders holding LC Facility Commitments, Lenders holding more than 50% of the
aggregate LC Facility Exposure of all Lenders, and (v) for Lenders holding
Synthetic Letter of Credit Commitments, Lenders holding more than 50% of the
aggregate Synthetic Letter of Credit Exposure of all Lenders."; and
-5-
"
"Requisite
Lenders" means
Lenders having or holding more than 50% of the sum of the aggregate Term B Loan
Exposure of all Lenders plus the
aggregate Supplemental Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders plus the
aggregate LC Facility Exposure of all Lenders plus the
aggregate Synthetic Letter of Credit Exposure of all Lenders.".
C. Subsection 1.1
of the Credit Agreement is hereby amended further (i) by inserting the word
"Revolving" immediately before the text "Letters of Credit" in the first place
where such text appears in clause (c) of the definition of "Revolving Loan
Exposure", (ii) by inserting the text "LC"
immediately following the word "Revolving" in the
definition of "Revolving Reimbursement Date" and by re-alphabetizing such
definition after giving effect to such insertion, and (iii) by inserting
the text "second to" immediately before the text "last sentence" in
clause (ii) of the definition of "Term B Notes".
D. Subsection 1.1
of the Credit Agreement is hereby amended further by inserting the following
text immediately before the period at the end of clause (iv) of the
definition of "Pro Forma Basis":
"; provided that,
notwithstanding anything to the contrary contained in such Regulation S-X, the
pro
forma
adjustments disclosed to the Lenders as part of the December 10, 2003,
meeting of the Lenders shall be permitted".
| 1.2 |
Amendments
to Section 2: Amounts and Terms of Commitments and
Loans |
A. The first
sentence of subsection 2.1A of the Credit Agreement is hereby amended
(i) by deleting the word "and" from the fourth place where it appears in
such subsection and inserting a comma in lieu thereof and (ii) by inserting
the text "and 2.1A(vi)" immediately following the text "2.1A(v)".
B. Subsection 2.1A
of the Credit Agreement is hereby amended further by inserting at the end
thereof the following new clause (vi):
"(vi) Synthetic
Letter of Credit Commitment. Each
Synthetic Letter of Credit Lender severally agrees, subject to the limitations
set forth in subsection 3.1A with respect to the Total Utilization of
Synthetic Letter of Credit Commitments, (i) to acquire participations in
Synthetic Letters of Credit pursuant to subsection 3.1C and (ii) to
make Synthetic Letter of Credit Loans to Borrower pursuant to
subsection 3.3B(iii) from time to time during the period from (and
including) the First Amendment Effective Date to (with respect to Synthetic
Letter of Credit Loans) but excluding the Revolving Loan Commitment Termination
Date in an aggregate amount not exceeding its Pro Rata Share of the aggregate
amount of the Synthetic Letter of Credit Commitments to be used for the purposes
identified in subsection 2.5B. The amount of each Synthetic Letter of
Credit Lender’s Synthetic Letter of Credit Commitment as of the First Amendment
Effective Date is set forth opposite its name on Schedule
2.1 annexed
hereto and the aggregate amount of the Synthetic Letter of Credit Commitments as
of the First Amendment Effective Date is $15,000,000; provided that the
Synthetic Letter of Credit Commitments of Synthetic Letter of Credit Lenders
shall be adjusted to give effect to any assignments of the Synthetic Letter of
Credit Loan Commitments pursuant to subsection 10.1B and shall be reduced
from time to time by the amount of any reductions thereto made pursuant to
subsection 2.4. Each Synthetic Letter of Credit Lender’s Synthetic Letter
of Credit Commitment shall expire on the Revolving Loan Commitment Termination
Date and all Synthetic Letter of Credit Loans and all other amounts owed
hereunder with respect to the Synthetic Letter of Credit Loans and the Synthetic
Letter of Credit Commitments shall be paid in full no later than that date.
Synthetic Letter of Credit Loans may be prepaid from time to time pursuant to
subsection 2.4B(i) without reducing the Synthetic Letter of Credit
Commitments; provided,
however, that
the amount of each such prepayment shall be applied to replenish the
Credit-Linked Deposits in accordance with subsection 2.4 except to the
extent that a voluntary reduction of the Synthetic Letter of Credit Commitments
is made simultaneously with such prepayment; and provided further that
Synthetic Letter of Credit Loans may not be reborrowed except pursuant to
subsection 3.3B(iii).".
-6-
C. Subsection
2.1C of the Credit Agreement is hereby amended (i) by inserting the text
"Synthetic Letter of Credit Loans," immediately following the text "LC Facility
Loans," in the first sentence of such subsection, (ii) by inserting the
text "or Synthetic Letter of Credit Lender" immediately following the text "LC
Facility Issuing Lender" in the third sentence of such subsection and
(iii) by inserting the text "or Synthetic Letter of Credit" immediately
following the text "LC Facility Letter of Credit" in such third
sentence.
D. Subsection
2.1D of the Credit Agreement is hereby amended (i) by inserting the text
"Synthetic Letter of Credit Commitment," immediately following the text "LC
Facility Commitment," in the first sentence of such subsection and (ii) by
inserting the text "Synthetic Letter of Credit Loans," immediately following the
text "LC Facility Loans," in such first sentence.
E. Subsection
2.1E of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and substituting the following therefor:
"E. Notes. At the
request of any Lender, Borrower shall execute and deliver (i) on the
Closing Date, and from time to time thereafter as required by
subsection 10.1B(i), (1) to such Lender (a) if such Lender holds
a Term B Loan, a Term B Note substantially in the form of Exhibit IV annexed
hereto to evidence such Lender’s Term B Loan and with other appropriate
insertions, (b) if such Lender is a Revolving Lender, a Revolving Note
substantially in the form of Exhibit VI annexed
hereto to evidence such Lender’s Revolving Loans, in the principal amount of
such Lender’s Revolving Loan Commitment and with other appropriate insertions,
and (c) if such Lender holds an LC Facility Commitment, an LC Facility Note
substantially in the form of Exhibit VIII annexed
hereto to evidence such Lender’s LC Facility Loans, in the principal amount of
such Lender’s LC Facility Commitment, and (2) to the Swing Line Lender, if
the requesting Lender is the Swing Line Lender, a Swing Line Note substantially
in the form of Exhibit VII annexed
hereto to evidence the Swing Line Lender’s Swing Line Loans, in the principal
amount of the Swing Line Loan Commitment and with other appropriate insertions,
(ii) on the date of the making of each Supplemental Term Loan, and from
time to time thereafter as required by subsection 10.1B(i), if such Lender
holds a Supplemental Term Loan Commitment, a Supplemental Term Note
substantially in the form of Exhibit V annexed
hereto to evidence such Lender’s Supplemental Term Loan, in the principal amount
of such Lender’s Supplemental Term Loan and with other appropriate insertions,
and (iii) on the First Amendment Effective Date, and from time to time
thereafter as required by subsection 10.1B(i), if such Lender holds a
Synthetic Letter of Credit Commitment, a Synthetic Letter of Credit Note
substantially in the form of Exhibit VIII-A annexed
hereto to evidence such Lender’s Synthetic Letter of Credit Loans, in the
principal amount of such Lender’s Synthetic Letter of Credit
Commitment.".
F. Subsection
2.2A of the Credit Agreement is hereby amended by inserting the text
", each Synthetic Letter of Credit Loan" immediately following the text
"each LC Facility Loan" in the first sentence of such subsection.
-7-
G. Subsection
2.2A(ii) of the Credit Agreement is hereby amended (i) by deleting the text
"the Term B Loans and" from the first sentence of such subsection, (ii) by
deleting the text "Term B Loans and the LC Facility Loan" from the proviso at
the end of such subsection and inserting in lieu thereof the text "LC Facility
Loans", (iii) by deleting the text "Term B Loans that are Base Rate Loans"
from such proviso and inserting in lieu of such deleted text the text "LC
Facility Loans that are Base Rate Loans", and (iv) by inserting the
following text at the end of such subsection:
"Subject
to the provisions of subsections 2.2E, 2.2G and 2.7, the Term B Loans and
the Synthetic Letter of Credit Loans shall bear interest through maturity as
follows:
(a) if a Base
Rate Loan, then at the sum of the Base Rate plus the Base
Rate Margin set forth in the table below opposite the Consolidated Leverage
Ratio for the four Fiscal Quarter period for which the applicable Pricing
Certificate has been delivered pursuant to subsection 6.1(iv);
or
(b) if a
LIBOR Rate Loan, then at the sum of the Adjusted LIBOR Rate plus the
LIBOR Rate Margin set forth in the table below opposite the Consolidated
Leverage Ratio for the four Fiscal Quarter period for which the applicable
Pricing Certificate has been delivered pursuant to
subsection 6.1(iv):
|
Consolidated
Leverage
Ratio |
LIBOR
Rate
Margin |
Base
Rate
Margin | |
|
Greater
than or
equal to |
3.50:1.00 |
3.25% |
2.00% |
|
Less
than |
3.50:1.00 |
3.00% |
1.75% |
".
H. Subsection
2.2D of the Credit Agreement is hereby amended by inserting the text ",
Synthetic Letter of Credit Loans" immediately following the text "LC Facility
Loans".
I. Subsection 2.4B(i)
of the Credit Agreement is hereby amended by inserting the following sentence at
the end of such subsection:
"Notwithstanding
anything to the contrary contained herein (other than the proviso at the end of
this sentence), in the event that, at any time or times during the period
commencing on the First Amendment Effective Date and ending on (and including)
the first anniversary thereof, all or any portion of the principal amount of the
Term Loans is prepaid under this subsection 2.4B(i), then Borrower shall
pay to the Lenders holding Term Loans a prepayment premium equal to 1.00% of the
principal amount of the Term Loans so prepaid; provided,
however, that if
Lenders holding Term Loans waive all or any portion of a mandatory prepayment
under subsection 2.4B(iii) and the Borrower elects to make a voluntary
prepayment of the Term Loans in the amount of such waived portion of a mandatory
prepayment, then no prepayment premium shall be required with respect to such
voluntary prepayment (to the extent that it does not exceed the amount of such
waived portion of a mandatory prepayment)."
-8-
J. Subsection 2.4B(ii)
of the Credit Agreement is hereby amended (i) by inserting the text "or
Synthetic Letter of Credit Lender" immediately following the text "LC Facility
Lender" in the first sentence of such subsection, (ii) by deleting the word
"and" immediately before clause (b) of such subsection and inserting in
lieu thereof a comma, and (iii) by inserting the following new
clause (c) immediately before the period at the end of the first sentence
in such subsection:
", and
(c) the Synthetic Letter of Credit Commitments in an amount up to the
amount by which the Synthetic Letter of Credit Commitments exceed the Total
Utilization of Synthetic Letter of Credit Commitments at the time of such
proposed termination or reduction; provided that any
such partial reduction of the Synthetic Letter of Credit Commitments shall be in
an aggregate minimum amount of $1,000,000 and multiples of $500,000 in excess of
that amount; and provided further that,
notwithstanding anything to the contrary contained herein, in the event that, at
any time or times during the period commencing on the First Amendment Effective
Date and ending on (and including) the first anniversary thereof, the Synthetic
Letter of Credit Commitments are terminated in whole or reduced in part under
this subsection 2.4B(ii), then Borrower shall pay to the Synthetic Letter
of Credit Lenders a termination or reduction premium equal to 1.00% of the
entire amount of the Synthetic Letter of Credit Commitments (determined before
giving effect to such termination), in the case of a termination in whole, or
1.00% of the amount by which the Synthetic Letter of Credit Commitments are so
reduced, in the case of any reductions in part".
K. Subsection 2.4B(ii)
of the Credit Agreement is hereby amended further (i) by inserting the text
"or Synthetic Letter of Credit Commitments" immediately following the text "LC
Facility Commitment" in the first place in which it appears in the second
sentence of such subsection, (ii) by inserting the text "or Synthetic
Letter of Credit Commitment" immediately following the text "LC Facility
Commitment" in the second place in which it appears in such second sentence of
such subsection, (iii) by inserting the text "or Synthetic Letter of Credit
Lender" immediately following the text "LC Facility Lender" in such second
sentence of such subsection, and (iv) by inserting the text "or Synthetic
Letter of Credit Commitments" immediately following the text "LC Facility
Commitment" in the third sentence of such subsection.
L. Subsection 2.4B(iii)
of the Credit Agreement is hereby amended by inserting the text "and/or the
Synthetic Letter of Credit Commitments" immediately following the text "LC
Facility Commitment" or "LC Facility Commitments" in each place where either
such text appears in such subsection, other than in clause (h) of such
subsection.
M. Subsection 2.4B(iii)
of the Credit Agreement is hereby amended further by inserting the following new
subsection 2.4B(iii)(i) immediately following the period at the end of
subsection 2.4B(iii)(h):
"(i) Prepayments
Due to Reductions or Restrictions of Synthetic Letter of Credit
Commitments.
Borrower shall from time to time prepay the Synthetic Letter of Credit Loans to
the extent necessary so that the Total Utilization of Synthetic Letter of Credit
Commitments shall not at any time exceed the Synthetic Letter of Credit
Commitments then in effect.".
-9-
N. Subsection 2.4B(iv)(a)
of the Credit Agreement is hereby amended (i) by inserting the text "and/or
Synthetic Letter of Credit Loans" immediately following the text "LC Facility
Loans" in clause second,
(ii) by inserting the text "and the Synthetic Letter of Credit Loans"
immediately following the text "LC Facility Loans" in both places where it
appears in the second sentence of such subsection and (iii) by inserting
the following new sentence immediately following the second sentence of such
subsection:
"Any
voluntary prepayments of Synthetic Letter of Credit Loans shall, to the extent
of the excess of the Synthetic Letter of Credit Commitments (determined after
giving effect to any reductions of the Synthetic Letter of Credit Commitments
occurring simultaneously with such prepayments) over the Total Utilization of
Synthetic Letter of Credit Commitments, be retained by the Administrative Agent
and applied to increase the amount of each Synthetic Letter of Credit Lender’s
Credit-Linked Deposit in an amount equal to such Synthetic Letter of Credit
Lender’s Pro Rata Share of such excess.".
O. Subsection 2.4B(iv)(b)
of the Credit Agreement is hereby amended (i) by inserting the text "and/or
the Synthetic Letter of Credit Loans" immediately following the text "LC
Facility Loans" in clause third,
(ii) by inserting the text "and/or the Synthetic Letter of Credit
Commitments" immediately following the text "LC Facility Commitments" in
clause fourth, and
(iii) by deleting the last sentence from such subsection in its entirety.
P. Subsection 2.4B(iv)(d)
of the Credit Agreement is hereby amended by deleting such subsection in its
entirety and inserting the following text in lieu thereof:
"(d) Application
of Mandatory Prepayments and Mandatory Commitment Reductions of Revolving Loans,
LC Facility Loans and Synthetic Letter of Credit Loans. Any
mandatory prepayments of the Revolving Loans, the LC Facility Loans or the
Synthetic Letter of Credit Loans, as the case may be, pursuant to
subsection 2.4B(iii) shall be applied to prepay the Revolving Loans, the LC
Facility Loans and the Synthetic Letter of Credit Loans on a pro rata basis (in
accordance with the respective outstanding principal amounts thereof). Any
mandatory reduction of Revolving Commitments, LC Facility Commitments and/or
Synthetic Letter of Credit Commitments, as the case may be, pursuant to this
subsection 2.4B shall be in proportion to each Revolving Lender’s, LC
Facility Lender’s and Synthetic Letter of Credit Lender’s Pro Rata Share,
respectively. Any mandatory prepayments of Synthetic Letter of Credit Loans
shall, to the extent of the excess of the Synthetic Letter of Credit Commitments
(determined after giving effect to any reductions of the Synthetic Letter of
Credit Commitments occurring simultaneously with such prepayments) over the
Total Utilization of Synthetic Letter of Credit Commitments, be retained by the
Administrative Agent and applied to increase the amount of each Synthetic Letter
of Credit Lender’s Credit-Linked Deposit in an amount equal to such Synthetic
Letter of Credit Lender’s Pro Rata Share of such excess.".
-10-
Q. Subsection 2.4B(iv)(e)
of the Credit Agreement is hereby amended by inserting the text ", Synthetic
Letter of Credit Loans" immediately following the text "Revolving
Loans".
R. Subsection 2.4C(iii)
of the Credit Agreement is hereby amended by deleting the text "LC Facility
Loans" in the second place where it appears in such subsection and inserting in
lieu thereof the text "Synthetic Letter of Credit Loans, Swing Line
Loans".
S. Subsection 2.4D
of the Credit Agreement is hereby amended (i) by inserting the text "C"
immediately following the text "2.3" in clause (i) of such subsection,
(ii) by deleting the word "whosoever" in clause (iii) of such
subsection and inserting in lieu thereof the word "whomsoever", (iii) by
renumbering clauses (ii) and (iii) of such subsection as clauses (v)
and (vi), and (iv) by inserting the following new clauses (ii), (iii)
and (iv):
"(ii) thereafter,
to the payment of accrued fees described in subsection 2.3A or B or
subsection 3.2 and accrued interest, in each case for the ratable benefit
of the Lenders to whom such fees and interest are owed;
(iii) thereafter,
to the payment of the principal amount of Swing Line Loans held by the Swing
Line Lender in its capacity as such (including, without limitation, the payment
of all unpaid amounts owing to the Swing Line Lender under
subsections 2.1A(iii)(b) or (c), but excluding the Swing Line Lender’s Pro
Rata Share of assignments of Swing Line Loans that have been purchased under
subsection 2.1A(iii)(c)), the posting of cash collateral for Letters of
Credit pursuant to Section 8, and the reimbursement of the Issuing Lenders
for all unpaid amounts owing to the Issuing Lenders under
subsection 3.3C(i), until all such Swing Line Loans (including, without
limitation, all unpaid amounts owing to the Swing Line Lender under
subsections 2.1A(iii)(b) or (c)) have been fully repaid, cash collateral in
an aggregate amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding has been posted with the
Administrative Agent pursuant to the terms of the Security Agreement, and all
amounts owing under subsection 3.3C(i) have been fully paid, in each case
for the ratable benefit of the Swing Line Lender and the Issuing Lenders;
(iv) thereafter,
to the payment of the principal amount of all Loans other than Swing Line Loans,
and to the principal amount of assignments of Swing Line Loans that have been
purchased under subsection 2.1A(iii)(c), in each case for the ratable
benefit of the Lenders (including, without limitation, the Swing Line Lender in
its capacity as a Revolving Lender);".
-11-
T. Subsection 2.9
of the Credit Agreement is hereby amended (i) by inserting the text "an
amount equal to the amount of its LC Facility Certificates of Deposit and its
Credit-Linked Deposit (if any) and" immediately following the word "including"
in clause (1) of the proviso in such subsection, and (ii) by inserting
the following text at the end of such subsection:
"Without
the consent of the Administrative Agent, (I) the LC Facility Certificate of
Deposit funded by any LC Facility Lender shall not be released in connection
with any assignment of its LC Facility Commitment, but shall instead be
purchased by the relevant assignee and continue to be held for application (if
not already applied) pursuant to subsections 3.3B(ii) and 3.3C(i)(b) in
respect of such assignee’s obligations under the LC Facility Commitment assigned
to it and (II) the Credit-Linked Deposit funded by any Synthetic Letter of
Credit Lender shall not be released in connection with any assignment of its
Synthetic Letter of Credit Commitment, but shall instead be purchased by the
relevant assignee and continue to be held for application (if not already
applied) pursuant to subsections 3.3B(iii) and 3.3C(i)(c) in respect of
such assignee’s obligations under the Synthetic Letter of Credit Commitment
assigned to it.".
| 1.3 |
Amendment
to Section 3: Letters of
Credit |
A. Subsection
3.1A(i)(b) of the Credit Agreement is hereby amended by deleting the reference
to "$20,000,000" contained therein and substituting "$35,000,000"
therefor.
B. Subsection 3.1A(i)(f)
of the Credit Agreement is hereby amended by deleting the text "LC" from such
subsection.
C. Subsection
3.1A of the Credit Agreement is hereby amended by inserting the following new
subsection 3.1A(iii) at the end thereof:
"(iii) Synthetic
Letters of Credit. In
addition, Borrower may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the First Amendment
Effective Date to but excluding the 30th day prior to the Revolving Loan
Commitment Termination Date, that one or more Synthetic Letter of Credit Lenders
issue Synthetic Letters of Credit payable on a sight basis for the account of
Borrower for the purposes specified in the definition of Standby Letters of
Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Borrower herein set forth, any one or
more Synthetic Letter of Credit Lenders may, but (except as provided in
subsection 3.1B(ii)) shall not be obligated to, issue such Letter of Credit
in accordance with the provisions of this subsection 3.1; provided that
Borrower shall not request that any Synthetic Letter of Credit Lender issue (and
no Synthetic Letter of Credit Lender shall issue):
-12-
(a) any
Synthetic Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Synthetic Letter of Credit Commitments would exceed the lesser of
(1) the Synthetic Letter of Credit Commitments then in effect and
(2) the aggregate amount of the Credit-Linked Deposits outstanding at such
time;
(b) any
Synthetic Letter of Credit having an expiration date later than the earlier of
(1) ten days prior to the Revolving Loan Commitment Termination Date and (2) the
date which is one year from the date of issuance of such Synthetic Letter of
Credit; provided that the
immediately preceding clause (2) shall not prevent any Issuing Lender from
agreeing that a Synthetic Letter of Credit will automatically be extended for
one or more successive periods not to exceed one year each unless such Synthetic
Letter of Credit Issuing Lender elects not to extend for any such additional
period; and provided,
further, that
such Synthetic Letter of Credit Issuing Lender shall elect not to extend such
Synthetic Letter of Credit if it has knowledge that an Event of Default has
occurred and is continuing (and has not been waived in accordance with
subsection 10.6) at the time such Synthetic Letter of Credit Issuing Lender must
elect whether or not to allow such extension;
(c) any
Synthetic Letter of Credit issued for the purpose of supporting (1) trade
payables or (2) any Indebtedness constituting "antecedent debt" (as that term is
used in Section 547 of the bankruptcy Code); or
(d) any
Synthetic Letter of Credit denominated in a currency other than
Dollars.".
D. Subsection 3.1B(iii)
of the Credit Agreement is hereby amended (i) by deleting the word "and"
immediately before clause (b) of such subsection and inserting a semicolon
in lieu thereof and (ii) by inserting immediately before the period at the
end thereof the following text:
"; and
(c) upon receipt by a proposed Synthetic Letter of Credit Issuing Lender of
a Request for Issuance pursuant to subsection 3.1B(i) requesting the issuance of
a Synthetic Letter of Credit, (1) in the event Administrative Agent is the
proposed Synthetic Letter of Credit Issuing Lender, Administrative Agent shall
be the Synthetic Letter of Credit Issuing Lender with respect to such Synthetic
Letter of Credit, notwithstanding the fact that the Synthetic Letter of Credit
Usage with respect to such Synthetic Letter of Credit and with respect to all
other Synthetic Letters of Credit issued by Administrative Agent, may exceed
Administrative Agent’s Synthetic Letter of Credit Commitment then in effect; and
(2) in the event any other LC Facility Lender is the proposed Issuing Lender,
such LC Facility Lender shall promptly notify Borrower and Administrative Agent
whether or not, in its sole discretion, it has elected to issue such Synthetic
Letter of Credit, and (x) if such Synthetic Letter of Credit Lender so
elects to issue such Synthetic Letter of Credit it shall be the Synthetic Letter
of Credit Issuing Lender with respect thereto and (y) if such Synthetic
Letter of Credit Lender fails to so promptly notify Borrower and Administrative
Agent or declines to issue such Synthetic Letter of Credit, Borrower may request
Administrative Agent or another Synthetic Letter of Credit Lender to be the
Synthetic Letter of Credit Issuing Lender with respect to such Synthetic Letter
of Credit in accordance with the provisions of this subsection
3.1B".
-00-
X. Xxxxxxxxxx 3.1B(v)
of the Credit Agreement is hereby amended (i) by inserting the text
"and
Synthetic Letter of Credit Lenders"
immediately following the text "LC
Facility Lenders" in the
caption of such subsection, (ii) by inserting the text "or Synthetic Letter
of Credit Lender" immediately following the text "LC Facility Lender" in the
second sentence of such subsection, and (iii) by inserting the text "or
Synthetic Letter of Credit Lender’s" immediately following the text "LC Facility
Lender’s" in such second sentence of such subsection.
F. Subsection 3.1C
of the Credit Agreement is hereby amended by inserting the following text
immediately before the period at the end of the first sentence of such
subsection:
"; and
(iii) each Synthetic Letter of Credit, each Synthetic Letter of Credit
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Synthetic Letter of Credit Issuing Lender a participation in such Synthetic
Letter of Credit and any drawings honored thereunder in an amount equal to such
Synthetic Letter of Credit Lender’s Pro Rata Share of the maximum amount that is
or at any time may become available to be drawn thereunder".
G. Subsection 3.1C
of the Credit Agreement is hereby amended further by inserting the word
"Facility" immediately before the word "Certificates" in the last sentence of
such subsection.
H. Subsection 3.2
of the Credit Agreement is hereby amended (i) by deleting the text
"Term B" in subsection 3.2(ii) and inserting in lieu thereof the text
"LC Facility", (ii) by renumbering subsections 3.2(iii) and 3.2(iv) as
subsections 3.2(iv) and 3.2(v), respectively, and (iii) by inserting
the following new subsection 3.2(iii):
"(iii) with
respect to any Synthetic Letter of Credit, (a) a fronting fee, payable
directly to the applicable Synthetic Letter of Credit Issuing Lender for its own
account, equal to 0.25% per annum of the daily amount available to be drawn
under such Synthetic Letter of Credit and (b) a letter of credit facility
fee, payable to Administrative Agent for the account of Synthetic Letter of
Credit Lenders, equal to (1) the sum of (x) the applicable LIBOR Rate
Margin for the Synthetic Letter of Credit Loans and (y) the Interest Rate
Differential multiplied by (2) the daily amount of the difference between
(x) the Synthetic Letter of Credit Commitments less (y) any
outstanding Synthetic Letter of Credit Loans, each such fronting fee or letter
of credit fee to be payable in arrears on and to (but excluding) the last
Business Day of March, June, September and December of each year and computed on
the basis of a 360-day year for the actual number of days
elapsed;".
-14-
I. Subsection 3.2(iv)
(determined after giving effect to the renumbering described above) of the
Credit Agreement is hereby amended by deleting the text "clause (i) above"
and inserting in lieu thereof the text "any of clauses (i) - (iii)
above".
J. Subsection 3.2(v)
(determined after giving effect to the renumbering described above) of the
Credit Agreement is hereby amended (i) by inserting the text "or
clause (iii)(b)" immediately following the text "clause (ii)(b)" and
(ii) by inserting the text "or Synthetic Letter of Credit Lender"
immediately following the text "LC Facility Lender".
K. Subsection 3.3B(i)
of the Credit Agreement is hereby amended by inserting the text "or before the
Business Day immediately following the date on which such drawing is honored
(the" immediately following the text "reimburse such Revolving Issuing Lender
on".
L. Subsection 3.3B
of the Credit Agreement is hereby amended by inserting the following new
subsection 3.3B(iii) at the end thereof:
"(iii) Reimbursement
by Borrower of Amounts Paid Under Synthetic Letters of Credit. In the
event a Synthetic Letter of Credit Issuing Lender has determined to honor a
drawing under a Synthetic Letter of Credit issued by it, such Synthetic Letter
of Credit Issuing Lender shall immediately notify Borrower and Administrative
Agent, and Borrower shall reimburse such Synthetic Letter of Credit Issuing
Lender on or before the Business Day immediately following the date on which
such drawing is honored (the "Synthetic
Letter of Credit Reimbursement Date") in an
amount in Dollars and in same day funds equal to the amount of such payment;
provided that,
anything contained in this Agreement to the contrary notwithstanding,
(a) unless Borrower shall have notified Administrative Agent and such
Synthetic Letter of Credit Issuing Lender prior to 10:00 A.M. (New York City
time) on the date such drawing is honored that Borrower intends to reimburse
such Synthetic Letter of Credit Issuing Lender for the amount of such payment
with funds other than the proceeds of Synthetic Letter of Credit Loans, Borrower
shall be deemed to have given a timely Notice of Borrowing to Administrative
Agent requesting Synthetic Letter of Credit Lenders to make Synthetic Letter of
Credit Loans that are Base Rate Loans on the Synthetic Letter of Credit
Reimbursement Date in an amount in Dollars equal to the amount of such payment
and (b) subject to satisfaction or waiver of the conditions specified in
subsection 4.3B, Synthetic Letter of Credit Lenders shall, on the Synthetic
Letter of Credit Reimbursement Date, make Synthetic Letter of Credit Loans that
are Base Rate Loans in the amount of such payment, the proceeds of which shall
be applied directly by Administrative Agent to reimburse such Synthetic Letter
of Credit Issuing Lender for the amount of such payment; provided further, that
each Synthetic Letter of Credit Lender hereby irrevocably authorizes the
Administrative Agent to fund such Synthetic Letter of Credit Lender’s Synthetic
Letter of Credit Loans by withdrawing an amount equal to the amount of each of
such Synthetic Letter of Credit Lender’s Synthetic Letter of Credit Loans from
such Synthetic Letter of Credit Lender’s Credit-Linked Deposit; and provided further, that if
for any reason proceeds of Synthetic Letter of Credit Loans are not received by
such Synthetic Letter of Credit Issuing Lender on the Synthetic Letter of Credit
Reimbursement Date in an amount equal to the amount of such payment, Borrower
shall reimburse such Synthetic Letter of Credit Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such payment over
the aggregate amount of such Synthetic Letter of Credit Loans, if any, which are
so received. Nothing in this subsection 3.3B(iii) shall be deemed to
relieve any Synthetic Letter of Credit Lender from its obligation to make
Synthetic Letter of Credit Loans on the terms and conditions set forth in this
Agreement, and Borrower shall retain any and all rights it may have against any
Synthetic Letter of Credit Lender resulting from the failure of such Synthetic
Letter of Credit Lender to make such Synthetic Letter of Credit Loans under this
subsection 3.3B.".
-15-
M. Subsection 3.3C(i)
of the Credit Agreement is hereby amended by inserting at the end thereof the
following new subsection 3.3C(i)(c):
"(c) Payment
by Synthetic Letter of Credit Lenders. In the
event that Borrower shall fail for any reason to reimburse any Synthetic Letter
of Credit Issuing Lender as provided in subsection 3.3B(iii) in an amount
equal to the amount of any payment by such Synthetic Letter of Credit Issuing
Lender under a Synthetic Letter of Credit issued by it, such Synthetic Letter of
Credit Issuing Lender shall promptly notify Administrative Agent, who will, upon
request by any Synthetic Letter of Credit Lender, notify such Synthetic Letter
of Credit Lender of the unreimbursed amount of such honored drawing and of such
Synthetic Letter of Credit Lender’s respective participation therein based on
such Synthetic Letter of Credit Lender’s Pro Rata Share. Each Synthetic Letter
of Credit Lender hereby irrevocably authorizes the Administrative Agent to make
such payment available to such Synthetic Letter of Credit Issuing Lender in an
amount equal to such Synthetic Letter of Credit Lender’s respective
participation from such Synthetic Letter of Credit Lender’s Credit-Linked
Deposit. In the event that the Administrative Agent reasonably determines that
applicable law or the order of any court or other Government Authority stays or
prohibits the Administrative Agent from making available to such Synthetic
Letter of Credit Issuing Lender on such business day the full amount of each
Synthetic Letter of Credit Lender’s participation in such Synthetic Letter of
Credit as provided in this subsection 3.3C(i)(c), such Synthetic Letter of
Credit Issuing Lender shall, without further act, become the owner of, and
succeed to the rights of such Synthetic Letter of Credit Lender with respect to,
a portion of such Synthetic Letter of Credit Lender’s Credit-Linked Deposit in
an amount equal to the amount of the portion of such participation not so made
available, together with all interest, fees, amounts payable pursuant to
subsection 3.6D and all other amounts payable thereon. Nothing in this
subsection 3.3C(i)(c) shall be deemed to prejudice the right of any Lender
to recover from any Synthetic Letter of Credit Issuing Lender any amounts made
available by such Synthetic Letter of Credit Lender to such Synthetic Letter of
Credit Issuing Lender pursuant to this subsection 3.3C(i)(c) in the event
that it is determined by the final judgment of a court of competent jurisdiction
that the payment with respect to a Synthetic Letter of Credit by such Synthetic
Letter of Credit Issuing Lender in respect of which payment was made by such
Synthetic Letter of Credit Lender constituted gross negligence or willful
misconduct on the part of such Synthetic Letter of Credit Issuing
Lender.".
N. Subsection 3.3C(ii)
of the Credit Agreement is hereby amended by deleting such subsection in its
entirety and inserting in lieu thereof the following text:
-16-
"(ii) Distribution
to Lenders of Reimbursements Received From Borrower.
(a) In the event that any Revolving Issuing Lender or LC Facility
Issuing Lender shall have been reimbursed by other Revolving Lenders or LC
Facility Lenders, as the case may be, pursuant to subsection 3.3C(i) for
all or any portion of any payment by such Issuing Lender under a Revolving
Letter of Credit or LC Facility Letter of Credit issued by it, such Issuing
Lender shall distribute to the Administrative Agent on behalf of each other
Revolving Lender or LC Facility Lender, as the case may be, that has paid all
amounts payable by it under subsection 3.3C(i) with respect to such payment
such other Revolving Lender’s Pro Rata Share or LC Facility Lender’s Pro Rata
Share, as the case may be, of all payments subsequently received by such Issuing
Lender from Borrower in reimbursement of such payment under such Letter of
Credit when such payments are received. Any such distribution shall be made to
such other Revolving Lender or LC Facility Lender, as the case may
be.
(b)(1) In
the event that any Synthetic Letter of Credit Issuing Lender shall have been
reimbursed by Synthetic Letter of Credit Lenders pursuant to
subsection 3.3C(i) for all or any portion of any payment by such Issuing
Lender under a Synthetic Letter of Credit issued by it, such Issuing Lender
shall distribute to the Administrative Agent on behalf of each Synthetic Letter
of Credit Lender that has paid all amounts payable by it under
subsection 3.3C(i) with respect to such payment such Synthetic Letter of
Credit Lender’s Pro Rata Share of all payments subsequently received by such
Issuing Lender from Borrower in reimbursement of such payment under such Letter
of Credit when such payments are received. Any such distribution shall, subject
to the last sentence of this subsection 3.3C(ii)(b)(1), be made to such
Synthetic Letter of Credit Lender. Any distribution to be made to the Synthetic
Letter of Credit Lenders pursuant to this subsection 3.3C(ii)(b)(1) shall,
to the extent of the excess of the Synthetic Letter of Credit Commitments over
the Total Utilization of Synthetic Letter of Credit Commitments, be retained by
the Administrative Agent and applied to increase the amount of each Synthetic
Letter of Credit Lender’s Credit-Linked Deposit in an amount equal to such
Synthetic Letter of Credit Lender’s Pro Rata Share of such excess.
(2) Without
limiting the obligations of the Borrower under subsection 2.6D or
subsection 3.6D, in the event that a drawing under a Synthetic Letter of
Credit (A) that has been reimbursed with the proceeds of Synthetic Letter
of Credit Loans that were funded by withdrawals from the Credit-Linked Deposits
as provided in subsection 3.3B(iii) or (B) for which payment to the
Synthetic Letter of Credit Issuing Lender by the Synthetic Letter of Credit
Lenders has been funded by withdrawals from the Credit-Linked Deposits as
provided in subsection 3.3C(i)(c), in either case shall be reimbursed by
the Borrower on a day other than the last day of an interest period or period of
investment applicable to the Credit-Linked Deposits, the Administrative Agent
may elect to invest the amount so reimbursed in overnight or short-term cash
equivalent investments until the end of the interest period or scheduled
investment termination date at the time in effect and the Borrower shall pay to
the Administrative Agent on the last day of such interest period or such
scheduled investment termination date, the amount, if any, by which the interest
accrued on a like amount of the Credit-Linked Deposits at the Adjusted LIBOR
Rate for the interest period or period of investment in effect therefor shall
exceed the interest actually earned through the investment of the amount so
reimbursed for the period from the date of such reimbursement through the end of
the applicable interest period or period of investment, as determined by the
Administrative Agent in good faith (which determination shall, absent manifest
error, be final and conclusive and binding on all parties hereto) and set forth
in the request for payment delivered to the Borrower. No delay in, or failure to
deliver, any such request for payment by the Administrative Agent shall in any
way relieve or diminish the obligations of the Borrower to pay to the
Administrative Agent the amount of interest required to be paid as provided
above in the preceding sentence. In the event that the Borrower shall fail to
pay any amount due under this paragraph, the return payable by the
Administrative Agent to the Synthetic Letter of Credit Lenders on their
Credit-Linked Deposits under subsection 3.6B(iii) shall be reduced by a
corresponding amount, and the Synthetic Letter of Credit Lenders shall, without
further act, succeed to the rights of the Administrative Agent with respect to
such amount due from the Borrower, ratably according to the amounts of their
respective Credit-Linked Deposits.".
-17-
O. Subsection
3.3D of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and inserting in lieu thereof the following text:
"D. Interest
on Amounts Paid Under Letters of Credit.
(i) Payment
of Interest by Borrower.
Borrower agrees to pay to each Issuing Lender, with respect to payments under
any Letters of Credit issued by it, interest on the amount paid by such Issuing
Lender in respect of each such payment from the date a drawing is honored to but
excluding the date such amount is reimbursed by Borrower (including any such
reimbursement out of the proceeds of Revolving Loans, LC Facility Loans or
Synthetic Letter of Credit Loans pursuant to subsection 3.3B) at a rate
equal to (a) with respect to Revolving Letters of Credit, (1) for the
period from the date such drawing is honored to but excluding the Revolving LC
Reimbursement Date, the rate then in effect under this Agreement with respect to
Revolving Loans that are Base Rate Loans and (2) thereafter, a rate which
is 2% per annum in excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate Loans,
(b) with respect to LC Facility Letters of Credit, (1) for the period
from the date such drawing is honored to but excluding the LC Facility Letter of
Credit Reimbursement Date, the rate then in effect under this Agreement with
respect to Term B Loans that are Base Rate Loans and (2) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Term B Loans that are Base Rate Loans, and
(c) with respect to Synthetic Letters of Credit, (1) for the period
from the date such drawing is honored to but excluding the Synthetic Letter of
Credit Reimbursement Date, the rate then in effect under this Agreement with
respect to Term B Loans that are Base Rate Loans and (2) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable under
this Agreement with respect to Term B Loans that are Base Rate Loans. Interest
payable pursuant to this subsection 3.3D(i) shall be computed on the basis
of a 360-day year for the actual number of days elapsed in the period during
which it accrues and shall be payable on demand or, if no demand is made, on the
date on which the related drawing under a Letter of Credit is reimbursed in
full.
(ii) Distribution
of Interest Payments by Issuing Lender.
Promptly upon receipt by any Issuing Lender of any payment of interest pursuant
to subsection 3.3D(i) with respect to a payment under a Letter of Credit
issued by it, (a) such Issuing Lender shall distribute to Administrative
Agent on behalf of each other Revolving Lender, LC Facility Lender or Synthetic
Letter of Credit Lender, as the case may be, out of the interest received by
such Issuing Lender in respect of the period from the date such drawing is
honored to but excluding the date on which such Issuing Lender is reimbursed for
the amount of such payment (including any such reimbursement out of the proceeds
of Revolving Loans, LC Facility Loans or Synthetic Letter of Credit Loans
pursuant to subsection 3.3B), the amount that such other Revolving Lender,
LC Facility Lender or Synthetic Letter of Credit Lender, as the case may be,
would have been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored under such Letter
of Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Revolving Lenders, LC Facility Lenders or Synthetic Letter
of Credit Lenders, as the case may be, pursuant to subsection 3.3C(i) for
all or any portion of such payment, such Issuing Lender shall distribute to
Administrative Agent on behalf of each other Revolving Lender, LC Facility
Lender or Synthetic Letter of Credit Lender, as the case may be, that has paid
all amounts payable by it under subsection 3.3C(i) with respect to such
payment such other Revolving Lender’s Pro Rata Share, LC Facility Lender’s Pro
Rata Share or Synthetic Letter of Credit Lender’s Pro Rata Share, as the case
may be, of any interest received by such Issuing Lender in respect of that
portion of such payment so reimbursed by other Revolving Lenders, LC Facility
Lenders or Synthetic Letter of Credit Lenders, as the case may be, for the
period from the date on which such Issuing Lender was so reimbursed by other
Revolving Lenders, LC Facility Lenders or Synthetic Letter of Credit Lenders, as
the case may be, to but excluding the date on which such portion of such payment
is reimbursed by Borrower. Administrative Agent shall distribute any such
amounts to a Revolving Lender, LC Facility Lender or Synthetic Letter of Credit
Lender, as the case may be.".
-18-
P. Subsection 3.4
of the Credit Agreement is hereby amended by deleting the initial paragraph
thereof and inserting in lieu of such paragraph the following text:
"The
obligation of Borrower to reimburse each Revolving Issuing Lender, each LC
Facility Lender and each Synthetic Letter of Credit Lender, as the case may be,
for payments under the Letters of Credit issued by it, and to repay any
Revolving Loans made by Revolving Lenders pursuant to subsection 3.3B(i),
any LC Facility Loans made by LC Facility Lenders pursuant to
subsection 3.3B(ii), and any Synthetic Letter of Credit Loans made by
Synthetic Letter of Credit Lenders pursuant to subsection 3.3B(iii), as the
case may be, and the obligations of Revolving Lenders, LC Facility Lenders and
Synthetic Letter of Credit Lenders, as the case may be, under
subsection 3.3C(i)(a), 3.3C(i)(b) and 3.3C(i)(c), respectively, shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including any of the following
circumstances:".
Q. Subsection 3.4
of the Credit Agreement is hereby amended further by deleting clause (ii)
thereof and inserting in lieu of such clause (ii) the following text:
"(ii) the
existence of any claim, set-off, defense or other right which Borrower or any
Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
any Issuing Lender or other Revolving Lender, LC Facility Lender or Synthetic
Letter of Credit Lender or any other Person or, in the case of a Revolving
Lender, LC Facility Lender or Synthetic Letter of Credit Lender, against
Borrower, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between Borrower or one of its Subsidiaries and the beneficiary for
which any Letter of Credit was procured);".
R. Section 3
of the Credit Agreement is hereby amended by inserting the following new
subsection 3.6 at the end thereof:
"3.6 Lender
Deposits.
A. Credit-Linked
Deposits. On the
First Amendment Effective Date, each Synthetic Letter of Credit Lender shall pay
to the Administrative Agent such Synthetic Letter of Credit Lender’s
Credit-Linked Deposit. The Credit-Linked Deposits shall be held by the
Administrative Agent in (or credited to) one or more operating and/or investment
accounts of, and established by, the Administrative Agent under its sole and
exclusive control and maintained at the office of the Administrative Agent
located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other office as
the Administrative Agent shall from time to time designate to the Synthetic
Letter of Credit Lenders). The Administrative Agent shall use the Credit-Linked
Deposits (i) to fund the Synthetic Letter of Credit Loans on behalf of the
Synthetic Letter of Credit Lenders pursuant to subsection 3.3B(iii) and
(ii) to fund the payments on behalf of the Synthetic Letter of Credit
Lenders to be made to the Synthetic Letter of Credit Issuing Lenders as (and to
the extent) required by subsection 3.3C(i)(c). The Administrative Agent
shall not be required to return any portion of a Credit-Linked Deposit to the
holder of such Credit-Linked Deposit unless either (I) the Synthetic Letter
of Credit Commitments have been terminated and either (A) all Synthetic
Letters of Credit have been cancelled and returned to the respective Issuing
Lender or (B) pursuant to Section 8 the Borrower has provided cash
collateral in accordance with the Security Agreement for the maximum amount that
may at any time be drawn under all Synthetic Letters of Credit then outstanding
or (II) the Synthetic Letter of Credit Commitments have been reduced and,
as a result of such reduction, the amount of such Synthetic Letter of Credit
Lender’s Credit-Linked Deposit exceeds the greater of (A) the amount of
such Synthetic Letter of Credit Lender’s Synthetic Letter of Credit Commitment
and (B) the sum of such Synthetic Letter of Credit Lender’s Pro Rata Share
of the undrawn portion of all outstanding Synthetic Letters of Credit (to the
extent of so much of such undrawn portion as has not been adequately secured by
the posting of cash collateral by the Borrower in accordance with the Security
Agreement) and such Synthetic Letter of Credit Lender’s Pro Rata Share of all
unreimbursed drawings under Synthetic Letters of Credit. No Person other than
the Administrative Agent shall have a right of withdrawal from any Credit-Linked
Deposit or any other right or power with respect to the Credit-Linked Deposits.
Notwithstanding anything herein to the contrary, the obligation of each
Synthetic Letter of Credit Lender to fund its participation in Synthetic Letters
of Credit shall be satisfied in full upon the funding of its Credit-Linked
Deposit (except that such obligation shall be restored in the event that the
Administrative Agent reasonably determines that applicable law or the order of
any Government Authority prohibits the Administrative Agent from using a
Synthetic Letter of Credit Lender’s Credit-Linked Deposit as described above due
to the bankruptcy or insolvency of such Synthetic Letter of Credit Lender or due
to any Lien in favor of creditors of such Synthetic Letter of Credit
Lender).
-19-
B. Use
and Investment of Lender Deposits. Each of
the Administrative Agent, each Issuing Lender, each LC Facility Lender and each
Synthetic Letter of Credit Lender hereby acknowledges and agrees (i) that
each LC Facility Lender that purchases an LC Facility Certificate of Deposit and
each Synthetic Letter of Credit Lender is funding its Lender Deposit to the
Administrative Agent for application to fund such Lender’s obligation to make LC
Facility Loans or Synthetic Letter of Credit Loans in the manner contemplated by
subsection 3.3B or to make available an amount equal to its respective
participation in unreimbursed LC Facility Letters of Credit or Synthetic Letters
of Credit in the manner contemplated by subsection 3.3C, (ii) that the
Administrative Agent may invest the funds on deposit in the Lender Deposits in
such investments as may be determined from time to time by the Administrative
Agent in its discretion and (iii) that the Administrative Agent shall pay
to each holder of a Credit-Linked Deposit a return on such Credit-Linked Deposit
(except as otherwise provided in subsection 3.3C(ii)(b)(2) or
subsection 3.6E) equal to the excess of the Adjusted LIBOR Rate for a
3-month interest period (or a shorter period, as necessary to avoid any interest
period extending beyond the stated expiration date of the Synthetic Letter of
Credit relating to such Credit-Linked Deposit) over the Interest Rate
Differential, in arrears on the last day of the interest period applicable to
such Credit-Linked Deposit (or, if earlier, the date on which an amount on
deposit in such Credit-Linked Deposit is either (x) used to fund a payment
under subsection 3.3B(iii) or 3.3C(i)(c), or (y) returned to the
holder of such Credit-Linked Deposit).
C. Ownership
of Lender Deposits. Borrower
shall have no right, title or interest in or to the Lender Deposits, it being
acknowledged and agreed by the parties hereto that the funding of the Lender
Deposits by the LC Facility Lenders and the Synthetic Letter of Credit Lenders
and the application of the Lender Deposits in the manner contemplated by
subsections 3.3B and 3.3C constitute agreements among the Administrative
Agent, each Issuing Lender, each LC Facility Lender and each Synthetic Letter of
Credit Lender with respect to the participations in the LC Facility Letters of
Credit and the Synthetic Letters of Credit and do not constitute any loan or
extension of credit to Borrower directly by the LC Facility Lenders or Synthetic
Letter of Credit Lenders.
D. Compensation
for Breakage and Other Costs. In the
event that (i) a drawing is made under an LC Facility Letter of Credit or
Synthetic Letter of Credit, (ii) an LC Facility Letter of Credit is
cancelled or (iii) the face amount of an LC Facility Letter of Credit is
reduced, in each case on a date other than the last day of an interest period or
period of investment with respect to the Lender Deposits relating to such Letter
of Credit, Borrower shall compensate Administrative Agent, upon written request
by Administrative Agent pursuant to subsection 2.8, for all reasonable
losses, expenses and liabilities (including any interest paid by Administrative
Agent to lenders of funds borrowed by it to make or carry any payments to an
Issuing Lender while any investments with respect to a Lender Deposit were being
liquidated) that the Administrative Agent may sustain as a result of such event.
In addition, Borrower shall pay to Administrative Agent from time to time upon
demand the Administrative Agent’s actual and reasonable administrative costs for
investing the Lender Deposits. Without limiting the obligations of the Lenders
under subsection 9.4 of this Agreement, and without limiting the
obligations of Borrower under this paragraph, all amounts payable by Borrower
under this paragraph shall be indemnified by the holders of the affected Lender
Deposits in proportion to the amount of their respective affected Lender
Deposits to the extent not paid by Borrower.
E. Change
in Circumstances. If the
Administrative Agent is not offering Dollar deposits (in the applicable amounts)
in the London interbank market, or if the Administrative Agent determines that
adequate and fair means do not exist for ascertaining the Adjusted LIBOR Rate
for the Credit-Linked Deposits (or any part of any thereof), then the
Credit-Linked Deposits (or such parts, as applicable) shall be invested so as to
earn a return equal to the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.".
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| 1.4 |
Amendment
to Section 5: Borrower’s Representations and
Warranties |
The first
sentence of Section 5 of the Credit Agreement is hereby amended by
inserting the text "or Synthetic Letter of Credit Lenders" immediately following
the text "LC Facility Lenders".
| 1.5 |
Amendments
to Section 7: Borrower’s Negative
Covenants |
A. Subsection
7.3 of the Credit Agreement is hereby amended by deleting the "and" at the end
of clause (x) thereof and inserting immediately after clause (xi) thereof the
following clause (xii):
"and
(xii) Borrower and its Subsidiaries may consummate the [Target] Acquisition only
upon satisfaction of the following conditions: (1) on the date of consummation
of such acquisition (such date being the "[Target]
Acquisition Effective Date"),
EBITDA attributable to the New Business or Person so acquired shall have a
positive EBITDA for the four Fiscal Quarter period most recently ended
(calculated, as applicable, in accordance with the definition of "Consolidated
EBITDA" herein and clause (iv) of the definition of "Pro Forma Basis");
(2) the [Target] Acquisition shall occur no later than May 31, 2004;
(3) the aggregate consideration paid (including, without limitation, the present
value of payments required to be made after the [Target] Acquisition Effective
Date, as determined reasonably and in good faith by Borrower) by Borrower and
its Subsidiaries in connection with the [Target] Acquisition shall not exceed
$30,000,000; (4) Borrower shall have complied with the requirements of
subsections 6.8 and 6.9, to the extent applicable, on or promptly following
the [Target] Acquisition Effective Date; (5) no more than 40% of the
consideration paid by Borrower and its Subsidiaries in connection with the
[Target] Acquisition shall be paid with the proceeds of the Revolving Loans;
(6) Borrower shall have delivered a disclosure statement updating each of
the Schedules to this Agreement and the other Loan Documents to reflect any
material factual revisions or modifications to the information set forth therein
resulting from such acquisition; provided that any
such update which alters the substantive effect of any representation or
warranty, covenant or any other term or condition of this Agreement or any other
Loan Document or which discloses an event or circumstance that, in any case,
would otherwise require the consent of Administrative Agent, Requisite Lenders
or Lenders to such modification, event or circumstance, shall not constitute a
modification of this Agreement or any other Loan Document or a permitted
disclosure hereunder or thereunder, and shall not excuse any Event of Default or
Potential Event of Default which may otherwise arise in connection therewith,
without written consent required hereunder of Administrative Agent, Requisite
Lenders or Lenders, as the case may be; (7) after giving effect to such
acquisition (and any Indebtedness incurred in connection therewith), (A) the
amount by which the Revolving Loans Commitments exceeds the Total Utilization of
the Revolving Loan Commitments shall be at least $10,000,000, (B) Borrower and
its Subsidiaries shall not be engaged in any business not permitted by
subsection 7.11, (C) Borrower shall be in compliance on a pro
forma basis
with each of the financial covenants contained in subsection 7.6,
(D) no Event of Default or Potential Event of Default shall have occurred
and be continuing or would result from such acquisition, and (E) Borrower
shall have delivered to Administrative Agent an Officer’s Certificate to the
effect set forth in the foregoing clauses (A) through (D) and a Compliance
Certificate to evidence clause (C); (9) the Administrative Agent shall be
satisfied with its due diligence, including review of the [Target] Acquisition
Documents; and (10) the Administrative Agent shall have received such other
customary documents and information (including financial information and
projections) in respect of such [Target] Acquisition as the Administrative Agent
may reasonably deem appropriate.".
-21-
B. Subsection
7.12 of the Credit Agreement is hereby amended by adding at the end thereof the
following new subsection 7.12C:
"C. Amendment
of [Target] Acquisition Documents. Neither
Borrower nor any of its Subsidiaries will agree to any material amendment to, or
waive any of its material rights under, any [Target] Acquisition Document after
the First Amendment Effective Date if such amendment or waiver would reasonably
be expected to be materially adverse to the interests of Borrower or Lenders,
without in each case obtaining the prior written consent of Administrative Agent
and Requisite Lenders to such amendment or waiver.".
| 1.6 |
Amendment
to Section 8: Events of
Default |
Section 8
of the Credit Agreement is hereby amended by inserting the text "or Synthetic
Letter of Credit Lenders" immediately following the text "LC Facility Lenders"
in the last proviso of such Section.
| 1.7 |
Amendment
to Section 9: Administrative
Agent |
Section 9.2B
of the Credit Agreement is hereby amended by inserting the text "or the
Synthetic Letter of Credit Usage" immediately following the text "LC Facility
Letter of Credit Usage".
| 1.8 |
Amendments
to Section 10: Miscellaneous |
A. Subsection 10.1A
of the Credit Agreement is hereby amended by deleting the third sentence of such
subsection in its entirety and inserting in lieu thereof the following text:
"No sale,
assignment or transfer or participation of any Revolving Letter of Credit, LC
Facility Letter of Credit or Synthetic Letter of Credit, as the case may be, or
any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Revolving Lenders or in the LC
Facility Commitment and the LC Facility Loans of the LC Facility Lenders or in
the Synthetic Letter of Credit Commitment and the Synthetic Letter of Credit
Loans of the Synthetic Letter of Credit Lenders, as the case may be, effecting
such sale, assignment, transfer or participation.".
B. Subsection
10.1B(i)(a) of the Credit Agreement is hereby amended (i) by inserting the
text "or Synthetic Letter of Credit Exposure" immediately following the text "or
LC Facility Exposure" and (ii) by inserting the text "or Synthetic Letter
of Credit Loan" immediately following the text "LC Facility Loan".
-22-
C. Subsection 10.1B(i)(e)
of the Credit Agreement is hereby amended by deleting such subsection in its
entirety and inserting in lieu thereof the following text:
"(e) (1) in
the case of an assignment of all or a portion of an LC Facility Commitment of
any Lender, Administrative Agent and each LC Facility Issuing Lender shall have
given their prior written consent to such assignment and (2) in the case of
an assignment of all or a portion of a Synthetic Letter of Credit Commitment of
any Lender, Administrative Agent and each Synthetic Letter of Credit Issuing
Lender shall have given their prior written consent to such assignment,
and".
D. Subsection 10.1B(i)
of the Credit Agreement is hereby further amended by deleting the second to last
sentence contained therein in its entirety and inserting in lieu thereof the
following text:
"The
assigning Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its Notes, if any, to Administrative Agent
for cancellation, and thereupon new Notes shall, if so requested by the assignee
and/or the assigning Lender in accordance with subsection 2.1E, be issued
to the assignee and/or to the assigning Lender, substantially in the form of
Exhibit IV,
Exhibit V,
Exhibit VI,
Exhibit VIII, or
Exhibit VIII-A annexed
hereto, as the case may be, with appropriate insertions, to reflect the new
Commitments and/or outstanding Term B Loans, Revolving Loans, Supplemental Term
Loans, LC Facility Loans or Synthetic Letter of Credit Loans, as the case may
be, of the assignee and/or the assigning Lender. Without the consent of the
Administrative Agent, (I) the LC Facility Certificate of Deposit funded by
any LC Facility Lender shall not be released in connection with any assignment
of its LC Facility Commitment, but shall instead be purchased by the relevant
assignee and continue to be held for application (if not already applied)
pursuant to subsections 3.3B(ii) and 3.3C(i)(b) in respect of such
assignee’s obligations under the LC Facility Commitment assigned to it and
(II) the Credit-Linked Deposit funded by any Synthetic Letter of Credit
Lender shall not be released in connection with any assignment of its Synthetic
Letter of Credit Commitment, but shall instead be purchased by the relevant
assignee and continue to be held for application (if not already applied)
pursuant to subsections 3.3B(iii) and 3.3C(i)(c) in respect of such
assignee’s obligations under the Synthetic Letter of Credit Commitment assigned
to it.".
E. Subsection 10.1B(iii)
is hereby amended (i) by inserting the text ", Synthetic Letter of Credit
Loan" immediately following the text "LC Facility Loan" in the second sentence
thereof and (ii) by inserting the text ", Synthetic Letter of Credit
Commitment" immediately following the text "LC Facility Commitment" in such
sentence.
F. Subsection 10.6
of the Credit Agreement is hereby amended by deleting clause (a)(2) of such
subsection and inserting in lieu of such clause the text
"(2) [intentionally omitted],".
G. Subsection 10.6(a)(8)
of the Credit Agreement is hereby amended by inserting the text "or
(z) Synthetic Letter of Credit Lenders relating to the purchase of
participations in Synthetic Letters of Credit" immediately following the text
"LC Facility Letters of Credit".
-23-
| 1.9 |
Substitution
of Exhibits and Schedules |
A. The
Credit Agreement is hereby amended by adding a new Exhibit VIII-A to the
Credit Agreement in the form of Exhibit VIII-A to this
Amendment.
B. Schedule 2.1
to the Credit Agreement is hereby amended by deleting said Schedule 2.1 in
its entirety and substituting in place thereof a new Schedule 2.1 to the
Credit Agreement in the form of Schedule 2.1 to this
Amendment.
| SECTION 2. |
LIMITED
WAIVER
|
A. Subject
to the terms and conditions set forth herein, and in reliance on the
representations and warranties of Borrower herein contained, but notwithstanding
anything to the contrary contained in subsection 2.4B(iii)(e) of the Credit
Agreement, the undersigned hereby agree that the Borrower may reduce the amount
(if any) of the prepayment of the Loans and/or reduction of the Revolving Loan
Commitments, the LC Facility Commitments and/or the Synthetic Letter of Credit
Commitments, as the case may be, required under subsection 2.4B(iii)(e) for
Fiscal Year 2003 by an amount not to exceed $25,000,000 (the "Retained
Amount"). The
Retained Amount shall be used by the Borrower to fund all or a portion of the
purchase price of the [Target] Acquisition (the "Permitted
Use");
provided,
however, that if
any portion of the Retained Amount has not been applied to fund the Permitted
Use on or prior to the earlier of the [Target] Acquisition Effective Date and
May 31, 2004, the Borrower shall apply such unused portion of the Retained
Amount on such earlier date to prepay the Loans and/or reduce the Revolving Loan
Commitments, the LC Facility Commitments and/or the Synthetic Letter of Credit
Commitments, as the case may be, permanently. Any prepayments or commitment
reductions pursuant to the foregoing proviso shall be treated as prepayments or
commitment reductions under subsection 2.4B(iii)(e) of the Credit Agreement
for Fiscal Year 2003 for all purposes of the Credit Agreement and the other Loan
Documents. The Borrower shall deliver an Officer’s Certificate certifying as to
the amount of the Retained Amount on or prior to the date when the prepayments
and/or commitment reductions (if any) required under
subsection 2.4B(iii)(e) of the Credit Agreement are required to be made,
and shall deliver another Officer’s Certificate on or prior to the earlier of
the [Target] Acquisition Effective Date and May 31, 2004, demonstrating the
application of the Retained Amount to the Permitted Use and/or to the prepayment
of the Loans and/or the reduction of the Revolving Loan Commitments, the LC
Facility Commitments or the Synthetic Letter of Credit Commitments.
B. Without
limiting the generality of the provisions of subsection 10.6 of the Credit
Agreement, the waiver set forth above shall be limited precisely as written and
relates solely to the noncompliance by Borrower with the provisions of
subsection 2.4B(iii)(e) of the Credit Agreement in the manner and to the
extent described above, and nothing in this Amendment shall be deemed to:
-24-
(i) constitute
a waiver of compliance by Borrower with respect to
(a) subsection 2.4B(iii)(e) of the Credit Agreement in any other
instance or (b) any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein (whether in
connection with the [Target] Acquisition or otherwise); or
(ii) prejudice
any right or remedy that Administrative Agent or any Lender may now have or may
have in the future under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein.
Except as
expressly set forth herein, the terms, provisions and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
in all other respects are hereby ratified and confirmed.
| SECTION 3. |
CONDITIONS
TO
EFFECTIVENESS
|
Sections 1
and 2 of this Amendment shall become effective only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "First
Amendment Effective Date"):
A. Corporate
Documents. On or
before the First Amendment Effective Date, Borrower, Parent, and each Material
Subsidiary (each a "Credit
Party") shall
have delivered to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
(i) An
Officer’s Certificate of such Credit Party (a) certifying that the
Organizational Documents of such Credit Party, as delivered to Administrative
Agent on the Closing Date, are in full force and effect and have not been
amended or modified in any respect since the Closing Date, or
(b) enumerating all amendments to the Organizational Documents of such
Credit Party made from the Closing Date and attaching true, correct and complete
copies of such amendments, certified as such by an Officer of such Credit
Party;
(ii) Resolutions
of the Governing Body of such Person approving and authorizing the execution,
delivery and performance of this Amendment, certified as of the First Amendment
Effective Date by its secretary or an assistant secretary as being in full force
and effect without modification or amendment;
(iii) Signature
and incumbency certificates of the officers of such Person executing this
Amendment; and
(iv) Executed
originals of this Amendment from the Borrower and the Credit Support Parties (as
defined below).
B. Issuance
of Notes. To the
extent requested by any Lender having new Commitments, Borrower shall have duly
authorized, executed and delivered to Administrative Agent, for distribution to
such Lender, new Notes to reflect the new Commitments and/or outstanding LC
Facility Loans or Synthetic Letter of Credit Loans of such Lender.
C. Opinion
of Counsel. Lenders
and their respective counsel shall have received originally executed copies of
one or more favorable written opinions of Mayer, Brown, Xxxx & Maw,
counsel for Borrower, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the First Amendment Effective
Date, with respect to the enforceability of the Amended Agreement and as to such
other matters as Administrative Agent acting on behalf of Lenders may reasonably
request.
-25-
D. Legal
Fees and Other Amounts Owing to Agents. Borrower
shall have paid to each Agent all amounts owing to such Agent (other than
amounts owing to such Agent solely in its capacity as a Lender or Issuing
Lender) as of such date under subsection 10.2 of the Credit Agreement or
otherwise, to the extent then invoiced, including, without limitation, all of
such Agent’s reasonable costs and expenses as described in subsection 10.2
of the Credit Agreement (including, without limitation, the reasonable fees,
expenses and disbursements of O’Melveny & Xxxxx LLP) in connection with this
Amendment and the documents and transactions related hereto.
E. Completion
of Proceedings. On or
before the First Amendment Effective Date, all corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and such counsel.
F. Notification
of Execution. Receipt
by Administrative Agent and Borrower of written or telephonic notice that the
Borrower, Agents, Credit Support Parties, and a sufficient percentage of the
Lenders to approve this Amendment in accordance with subsection 10.6 of the
Credit Agreement have each executed this Amendment and authorized its
delivery.
| SECTION 4. |
BORROWER’S
REPRESENTATIONS AND WARRANTIES |
In order
to induce Lenders to enter into this Amendment, Borrower represents and warrants
to each Lender:
A. Borrower
has all requisite corporate power and authority to enter into this Amendment and
to carry out the transactions contemplated by the Amended Credit
Agreement;
B. the
execution and delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate action on the
part of Borrower;
C. the
execution and delivery by Borrower of this Amendment and the performance by
Borrower of the Amended Credit Agreement do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
Parent or any of its Subsidiaries, the Organizational Documents of Parent or any
of its Subsidiaries or any order, judgment or decree of any court or other
Government Authority binding on Parent or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of Parent or
any of its Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Parent or any of
its Subsidiaries (other than Liens created under any of the Loan Documents in
favor of Administrative Agent on behalf of Lenders or as otherwise permitted
under the Amended Agreement), or (iv) require any approval of stockholders
or any approval or consent of any Person under any Contractual Obligation of
Parent or any of its Subsidiaries, except for such approvals or consents which
will be obtained on or before the First Amendment Effective Date and except, in
each case, to the extent such violation, conflict, breach, Lien or failure to
obtain such approval or consent could not reasonably be expected to result in a
Material Adverse Effect;
-26-
D. the
execution and delivery by Borrower of this Amendment and the performance by
Borrower of the Amended Credit Agreement do not and will not require any
Governmental Authorization, except as has been duly obtained and is in full
force and effect unless the failure to obtain such Governmental Authorization
could not reasonably be expected to have a Material Adverse Effect;
E. this
Amendment and the Amended Credit Agreement have been duly executed and delivered
by Borrower and are the legally valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles (whether considered in a proceeding
in equity or at law) relating to enforceability;
F. the
representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the date hereof and the First Amendment Effective Date (as defined
below) to the same extent as though made on and as of such dates, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date; and
G. no event
has occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event of
Default or a Potential Event of Default.
| SECTION 5. |
ACKNOWLEDGEMENT
AND CONSENT |
Parent
and each Subsidiary of Borrower (each individually a "Credit
Support Party" and
collectively, the "Credit
Support Parties") hereby
acknowledges that it has read this Amendment and consents to the terms hereof
and further hereby confirms and agrees that, notwithstanding the effectiveness
of this Amendment, the obligations of such Credit Support Party under each of
the Loan Documents to which such Credit Support Party is a party shall not be
impaired and each of the Loan Documents to which such Credit Support Party is a
party are, and shall continue to be, in full force and effect and are hereby
confirmed and ratified in all respects.
Parent
and each Subsidiary of Borrower acknowledges and agrees that nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
| SECTION 6. |
MISCELLANEOUS |
A. Reference
to and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and
after the First Amendment Effective Date, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement and each reference in the other Loan Documents
to the "Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended hereby.
(ii) Except as
specifically amended by this Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed; provided,
however, that
the Lenders party hereto do hereby authorize the Administrative Agent to enter
into, and the Borrower hereby covenants and agrees to execute and deliver within
10 days (or such longer number of days as the Administrative Agent may permit in
its sole discretion) after the First Amendment Effective Date, amendments and
supplements, in form and substance satisfactory to the Administrative Agent in
its reasonable discretion, of the Collateral Documents (including, without
limitation, amendments to the Mortgages in recordable form, and amended title
insurance policies), and to pay all filing and recording fees, title insurance
premiums, and other reasonable costs, in each case to the extent necessary or
desirable (as determined reasonably by the Administrative Agent) to ensure that
the perfected Lien of the Administrative Agent as agent for and representative
of the Lenders will continue to secure the full amount of all Obligations after
giving effect to this Amendment.
-27-
(iii) The
execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate
as a waiver of any right, power or remedy of Administrative Agent or any Lender
under the Credit Agreement or any of the other Loan Documents.
B. Fees
and Expenses.
Borrower acknowledges that all costs, fees and expenses as described in
subsection 10.2 of the Credit Agreement incurred by Administrative Agent or
its counsel with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrower.
C. Headings. Section
and subsection headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
D. Applicable
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF ANOTHER
LAW.
E. Counterparts;
Effectiveness. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Amendment (other than
the provisions of Sections 1 and 2 hereof, the effectiveness of which is
governed by Section 3 hereof) shall become effective on the date when
counterparts hereof signed by the Borrower, Agents, Credit Support Parties, and
a sufficient percentage of the Lenders to approve this Amendment in accordance
with subsection 10.6 of the Credit Agreement shall have been delivered to
Administrative Agent (including, without limitation, delivery via facsimile or
electronic mail).
[Remainder
of page intentionally left blank.]
-28-
IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first written
above.
BORROWER:
BRAND
SERVICES, INC.
By:
Name:
Title:
CREDIT
SUPPORT PARTIES: BRAND
INTERMEDIATE HOLDINGS, INC.
(for
purposes of Section 5 only)
By:
Name:
Title:
BRAND
SCAFFOLD BUILDERS, INC.
By:
Name:
Title:
-29-
CREDIT
SUPPORT PARTIES: BRAND
SCAFFOLD RENTAL & ERECTION,
(for
purposes of Section 5 only) INC.
By:
Name:
Title:
XXXXXXXXX
STAFFING, INC.
By:
Name:
Title:
BRAND
SCAFFOLD SERVICES, INC.
By:
Name:
Title:
BRAND
STAFFING SERVICES, INC.
By:
Name:
Title:
-30-
CREDIT
SUPPORT PARTIES: BRAND
SPECIAL EVENTS, INC.
(for
purposes of Section 5 only)
By:
Name:
Title:
BRAND
SCAFFOLD ERECTORS, INC.
By:
Name:
Title:
SCAFFOLD
BUILDING SERVICES, INC.
By:
Name:
Title:
SKYVIEW
STAFFING, INC.
By:
Name:
Title:
-31-
CREDIT
SUPPORT PARTIES: BRANDCRAFT
LABOR, INC.
(for
purposes of Section 5 only)
By:
Name:
Title:
SKYVIEW
SAFETY SERVICES, INC.
By:
Name:
Title:
SCAFFOLD-JAX,
INC.
By:
Name:
Title:
-32-
CREDIT
SUPPORT PARTIES: XXXX
XXXXX-GRANDSTANDS, INC.
(for
purposes of Section 5 only)
By:
Name:
Title:
KWIKRIG,
INC.
By:
Name:
Title:
-33-
CREDIT
SUISSE FIRST BOSTON,
acting
through its Cayman Islands branch,
as
Administrative Agent, Co-Arranger and Lender
By:
Name:
Title:
and
By:
Name:
Title:
JPMORGAN
CHASE BANK,
as
Syndication Agent
By:
Name:
Title:
X.X.
XXXXXX SECURITIES INC.,
as
Co-Arranger
By:
Name:
Title:
GENERAL
ELECTRIC CAPITAL CORPORATION,
as
Co-Documentation Agent and Lender
By:
Name:
Title:
ANTARES
CAPITAL CORPORATION,
as
Co-Documentation Agent and Lender
By:
Name:
Title:
-34-
APEX
(IDM) CDO I, LTD
By: XXXXX
X. XXXXXX & COMPANY INC.,
as
Collateral Manager
By:
Name:
Title:
XXXX
& XXXXXXX XXXXX FOUNDATION
By: XXXXX
X. XXXXXX & COMPANY INC.,
as
Investment Advisor
By:
Name:
Title:
-00-
XXXX
XXXX CLO, LTD.
|
By: |
DEERFIELD
CAPITAL MANAGEMENT LLC,
|
as
Collateral Manager
By:
Name:
Title:
CHASE
LINCOLN FIRST COMMERCIAL CORPORATION
By:
Name:
Title:
CREDIT
AGRICOLE INDOSUEZ
By:
Name:
Title:
and
By:
Name:
Title:
-36-
DENALI
CAPITAL CLO I LTD
By: DENALI
CAPITAL LLC,
Managing
Member of DC Funding Partners,
Portfolio
Manager for Denali Capital CLO I, Ltd.,
or an
affiliate
By:
Name:
Title:
DENALI
CAPITAL CLO II LTD
By: DENALI
CAPITAL LLC,
Managing
Member of DC Funding Partners,
Portfolio
Manager for Denali Capital CLO II, Ltd.,
or an
affiliate
By:
Name:
Title:
-37-
XXXXXX
III - LEVERAGED LOAN CDO 2002
By: PRUDENTIAL
INVESTMENT MANAGEMENT, INC.,
as
Collateral Manager
By:
Name:
Title:
XXXXXX
LEVERAGED LOAN CDO 2002-II
By: PRUDENTIAL
INVESTMENT MANAGEMENT, INC.,
as
Collateral Manager
By:
Name:
Title:
-38-
FLAGSHIP
CLO II
By: FLAGSHIP
CAPITAL MANAGEMENT, INC.
By:
Name:
Title:
FOREST
CREEK CLO, LTD.
|
By: |
DEERFIELD
CAPITAL MANAGEMENT LLC,
|
as
Collateral Manager
By:
Name:
Title:
FRANKLIN
CLO III LTD
By:
Name:
Title:
-39-
FRANKLIN
CLO IV LTD
By:
Name:
Title:
FRANKLIN
FLOATING RATE TRUST
By:
Name:
Title:
FRANKLIN
FLOATING RATE DAILY ACCESS FUND
By:
Name:
Title:
-00-
XXXXXXXXXX
XXXX XXXXX XXXXXXXXXXXXX I, LP
By: GOLDENTREE
ASSET MANAGEMENT, LP
By:
Name:
Title:
GOLDENTREE
HIGH YIELD OPPORTUNITIES II, LP
By: GOLDENTREE
ASSET MANAGEMENT, LP
By:
Name:
Title:
GOLDENTREE
LOAN OPPORTUNITIES I, LTD.
By: GOLDENTREE
ASSET MANAGEMENT, LP
By:
Name:
Title:
-41-
XXXXXX’X
ISLAND CDO LTD
By: CYPRESSTREE
INVESTMENT MANAGEMENT COMPANY, INC.,
as
Portfolio Manager
By:
Name:
Title:
ING
PRIME RATE TRUST
By: AELTUS
INVESTMENT MANAGEMENT, INC.,
as its
Investment Manager
By:
Name:
Title:
ING
SENIOR INCOME FUND
By: AELTUS
INVESTMENT MANAGEMENT, INC.,
as its
Investment Manager
By:
Name:
Title:
-42-
JPMORGAN
CHASE BANK,
as
trustee of the Antares Funding Trust created under the Trust Agreement dated as
of November 30, 1999
By:
Name:
Title:
LOAN
FUNDING CORP THC LTD
By:
Name:
Title:
LONG
LANE MASTER TRUST IV
By: FLEET
NATIONAL BANK,
as Trust
Administrator
By:
Name:
Title:
-00-
XXXXXXX
XXXXXX CDO IV LTD
By:
Name:
Title:
MAPLEWOOD
(CAYMAN) LIMITED
By: XXXXX
X. XXXXXX & COMPANY INC.,
under
delegated authority from Massachusetts Mutual Life Insurance Company,
as
Investment Manager
By:
Name:
Title:
MARINER
CDO 2002, LTD.
By:
Name:
Title:
-44-
MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY
By: XXXXX
X. XXXXXX & COMPANY INC.,
its
Investment Advisor
By:
Name:
Title:
XXXXXXX
XXXXX CAPITAL,
a
division of Xxxxxxx Xxxxx Business Financial Services,
Inc.
By:
Name:
Title:
METROPOLITAN
LIFE INSURANCE COMPANY
By:
Name:
Title:
MUIRFIELD
TRADING LLC
By:
Name:
Title:
-45-
NATEXIS
BANQUES POPULAIRES
By:
Name:
Title:
and
By:
Name:
Title:
OLYMPIC
FUNDING TRUST, SERIES 1999-1
By:
Name:
Title:
PROMETHEUS
INVESTMENT FUNDING NO. 2 LTD.
By:
Name:
Title:
and
By:
Name:
Title:
PROVIDENT
BANK
By:
Name:
Title:
-46-
ROSEMONT
CLO, LTD.
|
By: |
DEERFIELD
CAPITAL MANAGEMENT LLC,
|
as
Collateral Manager
By:
Name:
Title:
SEABOARD
CLO 2000 LTD.
By: XXXXX
X. XXXXXX & COMPANY INC.,
as
Collateral Manager
By:
Name:
Title:
SEQUILS
- CUMBERLAND I, LTD.
|
By: |
DEERFIELD
CAPITAL MANAGEMENT LLC,
|
as
Collateral Manager
By:
Name:
Title:
-47-
SEQUILS
- GLACE BAY, LTD.
By: ROYAL
BANK OF CANADA,
as
Collateral Manager
By:
Name:
Title:
SIERRA
CLO I LTD
By: CENTRE
PACIFIC, LLC,
its
Manager
By:
Name:
Title:
STONE
TOWER CLO LTD
By: STONE
TOWER DEBT ADVISORS LLC,
as its
Collateral Manager
By:
Name:
Title:
-48-
SUFFIELD
CLO, LIMITED
By: XXXXX
X. XXXXXX & COMPANY INC.,
as
Collateral Manager
By:
Name:
Title:
-49-
SCHEDULE 2.1
Lenders' Commitments
Lenders’
Commitments as of the Closing Date:
|
Lender
|
Term
B Loan Commitment |
Revolving
Loan Commitment |
LC
Facility Commitment |
Total
|
|
Credit
Suisse First Boston,
Cayman
Islands Branch
|
$130,000,000.00
|
$27,500,000.00
|
$11,000,000.00
|
$168,500,000.00
|
|
Chase
Lincoln First
Commercial
Corporation
|
$0.00
|
$22,500,000.00
|
$9,000,000.00
|
$31,500,000.00
|
|
TOTAL
|
$130,000,000.00
|
$50,000,000.00
|
$20,000,000.00
|
$200,000,000.00
|
The Term
B Loans were made on the Closing Date and no further commitment to make Term B
Loans exists after the Closing Date.
Lenders’
Commitments and Outstanding Term B Loans as of the First Amendment Effective
Date:
|
Lender |
Outstanding
Principal Balance of Term
B Loan |
Revolving
Loan Commitment |
LC
Facility Commitment |
Synthetic
Letter
of Credit Commitment |
Total |
|
Credit
Suisse First Boston,
Cayman
Islands Branch
|
$5,709,812.04 |
$8,000,001.00
|
$8,000,000.00
|
$13,000,000.00
|
$34,709,813.04 |
|
Antares
Capital Corporation
|
$2,854,906.11 |
$8,000,000.00
|
$2,000,000.00
|
$0.00
|
$12,854,906.11 |
|
Antares
Funding Trust
|
$2,854,906.02 |
$0.00
|
$0.00
|
$0.00
|
$2,854,906.02 |
|
Apex
(IDM) CDO I, Ltd
|
$1,087,583.26 |
$0.00
|
$0.00
|
$0.00
|
$1,087,583.26 |
|
Xxxx
& Xxxxxxx Xxxxx Foundation
|
$271,895.80 |
$0.00
|
$0.00
|
$0.00
|
$271,895.80 |
|
Bryn
Mawr CLO, Ltd.
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Chase
Lincoln First
Commercial
Corporation
|
$0.00
|
$7,999,999.00
|
$8,000,000.00
|
$0.00
|
$15,999,999.00 |
|
Credit
Agricole Indosuez
|
$0.00
|
$8,000,000.00
|
$0.00
|
$0.00
|
$8,000,000.00 |
|
Denali
Capital CLO I Ltd
|
$2,379,088.35 |
$0.00
|
$0.00
|
$0.00
|
$2,379,088.35 |
|
Denali
Capital CLO II Ltd
|
$3,330,723.70 |
$0.00
|
$0.00
|
$0.00
|
$3,330,723.70 |
|
Xxxxxx
III -
Leveraged
Loan CDO 2002
|
$2,854,906.02 |
$0.00
|
$0.00
|
$0.00
|
$2,854,906.02 |
|
Xxxxxx
Leveraged
Loan CDO 2002-II
|
$2,854,906.02 |
$0.00
|
$0.00
|
$0.00
|
$2,854,906.02 |
-50-
|
Flagship
CLO II |
$2,854,906.02 |
$0.00
|
$0.00
|
$0.00
|
$2,854,906.02 |
|
Forest
Creek CLO, Ltd. |
$1,532,132.90 |
$0.00
|
$0.00
|
$0.00
|
$1,532,132.90 |
|
Franklin
CLO III Ltd
|
$951,635.34 |
$0.00
|
$0.00
|
$0.00
|
$951,635.34 |
|
Franklin
CLO IV Ltd
|
$951,635.34 |
$0.00
|
$0.00
|
$0.00
|
$951,635.34 |
|
Franklin
Floating Rate Trust
|
$951,635.34 |
$0.00
|
$0.00
|
$0.00
|
$951,635.34 |
|
Franklin
Floating Rate Daily Access Fund
|
$951,635.34 |
$0.00
|
$0.00
|
$0.00
|
$951,635.34 |
|
General
Electric Capital Corporation
|
$9,516,353.42 |
$8,000,000.00
|
$2,000,000.00
|
$0.00
|
$19,516,353.42 |
|
GoldenTree
High Yield Opportunities I, LP
|
$3,330,723.70 |
$0.00
|
$0.00
|
$0.00
|
$3,330,723.70 |
|
GoldenTree
High Yield Opportunities II, LP
|
$3,330,723.70 |
$0.00
|
$0.00
|
$0.00
|
$3,330,723.70 |
|
GoldenTree
Loan
Opportunities
I, Ltd.
|
$4,758,176.71 |
$0.00
|
$0.00
|
$0.00
|
$4,758,176.71 |
|
Xxxxxx’x
Island CDO Ltd
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
ING
Prime Rate Trust
|
$3,806,541.37 |
$0.00
|
$0.00
|
$0.00
|
$3,806,541.37 |
|
ING
Senior Income Fund
|
$951,635.34 |
$0.00
|
$0.00
|
$0.00
|
$951,635.34 |
|
Loan
Funding Corp THC Ltd
|
$4,758,176.71 |
$0.00
|
$0.00
|
$0.00
|
$4,758,176.71 |
|
Long
Lane Master Trust IV
|
$8,564,718.07 |
$0.00
|
$0.00
|
$0.00
|
$8,564,718.07 |
-51-
Schedule 2.1
Lenders’ Commitments and Outstanding Term B Loans as of the First
Amendment Effective Date (Continued):
|
Madison
Avenue CDO IV Ltd
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Maplewood
(Cayman) Limited
|
$1,087,583.26 |
$0.00
|
$0.00
|
$0.00
|
$1,087,583.26 |
|
Mariner
CDO 2002, Ltd.
|
$3,806,541.37 |
$0.00
|
$0.00
|
$0.00
|
$3,806,541.37 |
|
Massachusetts
Mutual Life Insurance Company
|
$271,895.80 |
$0.00
|
$0.00
|
$0.00
|
$271,895.80 |
|
Xxxxxxx
Xxxxx Capital
|
$6,661,447.39 |
$5,000,000.00
|
$0.00
|
$2,000,000.00
|
$13,661,447.39 |
|
Metropolitan
Life Insurance Company
|
$7,613,082.73 |
$0.00
|
$0.00
|
$0.00
|
$7,613,082.73 |
|
Muirfield
Trading LLC
|
$475,817.67 |
$0.00
|
$0.00
|
$0.00
|
$475,817.67 |
|
Natexis
Banques Populaires
|
$4,762,946.82 |
$0.00
|
$0.00
|
$0.00
|
$4,762,946.82 |
|
Olympic
Funding Trust, Series
1999-1
|
$2,745,456.03 |
$0.00
|
$0.00
|
$0.00
|
$2,745,456.03 |
|
Prometheus
Investment Funding No. 2 Ltd.
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Provident
Bank
|
$1,903,270.68 |
$5,000,000.00
|
$0.00
|
$0.00
|
$6,903,270.68 |
|
Rosemont
CLO, Ltd.
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Seaboard
CLO 2000 Ltd.
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Sequils
- Cumberland I, Ltd.
|
$2,854,906.02 |
$0.00
|
$0.00
|
$0.00
|
$2,854,906.02 |
|
Sequils
- Glace Bay, Ltd.
|
$3,806,541.37 |
$0.00
|
$0.00
|
$0.00
|
$3,806,541.37 |
|
Sierra
CLO I, Ltd
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Stone
Tower CLO Ltd
|
$1,903,270.68 |
$0.00
|
$0.00
|
$0.00
|
$1,903,270.68 |
|
Suffield
CLO, Limited
|
$1,087,583.26 |
$0.00
|
$0.00
|
$0.00
|
$1,087,583.26 |
|
TOTAL
|
$123,712,594.46
|
$50,000,000.00
|
$20,000,000.00
|
$15,000,000.00
|
$208,712,594.46
|
-52-
SYNTHETIC
LETTER OF CREDIT NOTE
BRAND
SERVICES, INC.
_______________,
20___
FOR
VALUE RECEIVED, BRAND SERVICES, INC., a
Delaware corporation ("Borrower"),
promises to pay to ________________2 .
("Payee") or its
registered assigns, the lesser of (x) _______________________3 .
($____________________1) and
(y) the unpaid principal amount of all advances made by Payee to Borrower
as Synthetic Letter of Credit Loans under the Credit Agreement referred to
below. The principal amount of this Note shall be payable on the dates and in
the amounts specified in the Credit Agreement; provided that the
last such installment shall be in an amount sufficient to repay the entire
unpaid principal balance of this Note, together with all accrued and unpaid
interest thereon.
Borrower
also promises to pay interest on the unpaid principal amount hereof, from the
date hereof until paid in full, at the rates and at the times which shall be
determined in accordance with the provisions of that certain Credit Agreement
dated as of October 16, 2002, by and among Borrower, the financial
institutions listed therein as Lenders, JPMorgan Chase Bank, as syndication
agent for Lenders, Credit Suisse First Boston, as administrative agent for
Lenders (in such capacity, "Administrative
Agent") and,
together with X.X. Xxxxxx Securities Inc., joint lead arranger and book manager,
and Antares Capital Corporation and General Electric Capital Corporation, as
co-documentation agents for Lenders (said Credit Agreement, as it may be
amended, supplemented or otherwise modified from time to time, being the
"Credit
Agreement", the
terms defined therein and not otherwise defined herein being used herein as
therein defined).
This Note
is one of Borrower’s "Synthetic Letter of Credit Notes" in the aggregate
principal amount of $15,000,000 and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Synthetic Letter
of Credit Loans evidenced hereby were made and are to be repaid.
All
payments of principal and interest in respect of this Note shall be made in
lawful money of the United States of America in same day funds at the Funding
and Payment Office or at such other place as shall be designated in writing for
such purpose in accordance with the terms of the Credit Agreement. Unless and
until an Assignment Agreement effecting the assignment or transfer of this Note
shall have been accepted by Administrative Agent and recorded in the Register as
provided in the Credit Agreement, Borrower and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of this Note and the
Loans evidenced hereby. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided,
however, that
the failure to make a notation of any payment made on this Note shall not limit
or otherwise affect the obligations of Borrower hereunder with respect to
payments of principal of or interest on this Note.
1.
Insert amount of Lender's Synthetic Letter of Credit Commitment in
numbers.
2.
Insert Lender's name in capital letters.
3.
Insert amount of Lender's Synthetic Letter of Credit Commitment in
words.
-53-
Whenever
any payment on this Note shall be stated to be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the payment of
interest on this Note.
This Note
is subject to mandatory prepayment as provided in the Credit Agreement and to
prepayment at the option of Borrower as provided in the Credit
Agreement.
THIS
NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF ANOTHER
LAW.
Upon the
occurrence of an Event of Default, the unpaid balance of the principal amount of
this Note, together with all accrued and unpaid interest thereon, may become, or
may be declared to be, due and payable in the manner, upon the conditions and
with the effect provided in the Credit Agreement.
The terms
of this Note are subject to amendment only in the manner provided in the Credit
Agreement.
This Note
is subject to restrictions on transfer or assignment as provided in the Credit
Agreement.
No
reference herein to the Credit Agreement and no provision of this Note or the
Credit Agreement shall alter or impair the obligations of Borrower, which are
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, and in the currency herein
prescribed.
Borrower
promises to pay all costs and expenses, including reasonable attorneys’ fees,
all as provided in the Credit Agreement, incurred in the collection and
enforcement of this Note. Borrower and any endorsers of this Note hereby consent
to renewals and extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest, demand and notice of
every kind and, to the full extent permitted by law, the right to plead any
statute of limitations as a defense to any demand hereunder.
[Remainder
of page intentionally left blank.]
-54-
IN
WITNESS WHEREOF, Borrower
has caused this Note to be duly executed and delivered by its officer thereunto
duly authorized as of the date and at the place first written
above.
| BRAND SERVICES, INC. | ||
| |
|
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| By: | /s/ | |
|
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| Title | ||
-55-
TRANSACTIONS
ON
SYNTHETIC
LETTER OF CREDIT NOTE
|
Date |
Type
of
Loan
Made
This
Date |
Amount
of
Loan
Made
This
Date |
Amount
of
Principal
Paid
This Date |
Outstanding
Principal
Balance
This Date |
Notation
Made
By |
