Exhibit 10.6
BRAND SERVICES, INC.
FIRST AMENDMENT AND LIMITED WAIVER
TO CREDIT AGREEMENT
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.";
" "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
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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
" "[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).";
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" "[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.";
" "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
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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
" "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
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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
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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).".
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
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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.
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 LIBOR RATE BASE
LEVERAGE RATIO MARGIN 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%
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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)."
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
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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.".
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:
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"(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.".
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,
11
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);".
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
12
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):
(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
13
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".
E. Subsection 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
14
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;".
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;
15
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.".
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
16
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:
"(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.
17
(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.".
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
18
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
19
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.".
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
20
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).
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
21
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
22
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.".
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
23
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.".
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:
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"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".
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
25
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".
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
26
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:
(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;
27
(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.
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;
28
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;
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
29
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 desireable (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.
(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.
30
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.]
31
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:
CREDIT SUPPORT PARTIES: BRAND SCAFFOLD RENTAL & ERECTION, INC.
(for purposes of Section 5 only)
By:
-------------------------------------
Name:
Title:
XXXXXXXXX STAFFING, INC.
By:
-------------------------------------
Name:
Title:
BRAND SCAFFOLD SERVICES, INC.
By:
-------------------------------------
Name:
Title:
BRAND STAFFING SERVICES, INC.
By:
-------------------------------------
Name:
Title:
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:
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:
CREDIT SUPPORT PARTIES: XXXX XXXXX-GRANDSTANDS, INC.
(for purposes of Section 5 only)
By:
-------------------------------------
Name:
Title:
KWIKRIG, INC.
By:
-------------------------------------
Name:
Title:
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:
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:
BRYN MAWR 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:
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:
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:
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:
FRANKLIN CLO IV LTD
By:
-------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:
-------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE DAILY ACCESS FUND
By:
-------------------------------------
Name:
Title:
GOLDENTREE HIGH YIELD OPPORTUNITIES 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:
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:
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:
MADISON AVENUE 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:
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:
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:
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:
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:
SUFFIELD CLO, LIMITED
By: XXXXX X. XXXXXX & COMPANY INC.,
as Collateral Manager
By:
-------------------------------------
Name:
Title:
SCHEDULE 2.1
Lenders' Commitments
Lenders' Commitments as of the Closing Date:
Term B Loan Revolving Loan LC Facility
Lender Commitment Commitment 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:
Outstanding Synthetic
Principal Letter of
Balance of Revolving Loan LC Facility Credit
Lender Term B Loan Commitment Commitment 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
---------------
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
---------------
SCHEDULE 2.1
Lenders' Commitments and Outstanding Term B Loans as of the First Amendment
Effective Date (Continued):
Outstanding Synthetic
Principal Letter of
Balance of Revolving Loan LC Facility Credit
Lender Term B Loan Commitment Commitment Commitment Total
------------------------------ --------------- -------------- -------------- -------------- ---------------
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
---------------
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
-2-
SCHEDULE 2.1
Lenders' Commitments and Outstanding Term B Loans as of the First Amendment
Effective Date (Continued):
Outstanding Synthetic
Principal Letter of
Balance of Revolving Loan LC Facility Credit
Lender Term B Loan Commitment Commitment Commitment Total
------------------------------ --------------- -------------- -------------- -------------- ---------------
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
--------------- -------------- -------------- -------------- ===============
-3-
EXHIBIT VIII-A
[FORM OF SYNTHETIC LETTER OF CREDIT NOTE]
SYNTHETIC LETTER OF CREDIT NOTE
BRAND SERVICES, INC.
$_____________________(1) New York, New York
_______________, 20___
FOR VALUE RECEIVED, BRAND SERVICES, INC., a Delaware
corporation ("BORROWER"), promises to pay to ________________(2) ("PAYEE") or
its registered assigns, the lesser of (x) _______________________(3)
($____________________(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
---------------------
(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.
SYNTHETIC LETTER OF CREDIT NOTE
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.
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.]
-2- SYNTHETIC LETTER OF CREDIT NOTE
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.
By:
--------------------------------------
Name:
Title:
-3- SYNTHETIC LETTER OF CREDIT NOTE
TRANSACTIONS
ON
SYNTHETIC LETTER OF CREDIT NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------------- ----------- -------
-4- SYNTHETIC LETTER OF CREDIT NOTE
