EXHIBIT 10.11
[EXECUTION COPY]
AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment No. 4"). dated
as of April 11, 2001, among Brand Services, Inc., a Delaware corporation (the
"Borrower"), the various financial institutions from time to time parties
thereto (collectively, the "Lenders"), Credit Suisse First Boston, as
syndication agent (the "Syndication Agent") for the Lenders, and Bank of
America N.A. as administrative agent (the "Administrative Agent") for the
Lenders and as Issuer and Swing Line Lender.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Syndication Agent and the
Administrative Agent are parties to the Amended and Restated Credit Agreement,
dated as of March 17, 1999 (as heretofore modified and supplemented and in
effect from time to time, the "Credit Agreement");
WHEREAS, the Borrower desires to increase the aggregate principal amount
of Term-B Loans made under the Credit Agreement up to an aggregate amount of
$45,000,000 and obtain from certain of the Lender successive Term-B Loan
Commitments (collectively, the "Successive Term-B Loan Commitments") pursuant
to which a single Borrowing of successive Term-B Loans (collectively, the
"Successive Term-B Loans") up to a maximum aggregate principal amount of
$5,000,000 will be made on the Successive Term-B Loan Draw Date;
WHEREAS, the Borrower has requested the Lenders to amend the Credit
Agreement to extend to the Borrower Successive Term-B Loan Commitments for
Successive Term-B Loans and to modify certain provisions contained in the
Credit Agreement, as described below;
WHEREAS, all Loans and Obligations shall continue to be and shall be fully
guaranteed pursuant to the Subsidiary Guaranty and fully secured by, among
other things, the Borrower Security Agreement, and Subsidiary Security
Agreement, the Holdco Pledge Agreement, the Borrower Pledge Agreement and the
Subsidiary Pledge Agreement; and
WHEREAS, the Borrower desires, and the Lenders are willing, upon the terms
and subject to the conditions hereinafter set forth, to amend the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows;
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 4, including its
preamble and recitals, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment No. 4" is defined in the preamble.
"Amendment No. 4 Effective Date" is defined in Subpart 4.1.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Lenders" is defined in the preamble.
"Successive Term-B Loan Commitments" is defined in the second recital.
"Successive Term-B Loan Draw Date" means the date of the Borrowing of
Successive Term-B Loans, not to be later than April 26, 2001.
"Successive Term-B Loans" is defined in the second recital.
"Syndication Agent" is defined in the preamble.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 4, including its
preamble and recitals, have the meanings ascribed thereto in the Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement and the other Loan
Documents shall from and after the Amendment No. 4 Effective Date refer to the
Credit Agreement as amended hereby.
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PART II
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 4
Effective Date, the Credit Agreement is hereby amended in accordance with this
Part II. Except to the extent amended by this Amendment No. 4, the Credit
Agreement is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
SUBPART 2.1. Amendments to Article I. Section 1.1 of the Credit Agreement
is amended as set forth in this Subpart 2.1.
(a) the definition of "Commitment" contained in Section 1.1 of the
Credit Agreement is amended by replacing the word "or" in the second line
thereof following the term "Additional Term-B Loan Commitment" with a comma
and adding the words "or Successive Term-B Loan Commitment" immediately
following the words "Supplemental Term-B Loan Commitment" in the third line
thereof.
(b) The definition of "Interest Period" contained in Section 1.1 of
the Credit Agreement is amended by adding the following words at the end of
the paragraph following clause (v) thereof:
"and, provided, further, that with respect to the Borrowing of
Successive Term-B Loans, Interest Period means, initially, the period
commencing on (and including) the Business Day on which such Borrowing
is made and ending on (and including) the last day of the then
existing Interest Period in respect of then outstanding Term-B
Loans.".
(c) The definition of "Letter of Credit Commitment Amount" contained
in Section 1.1 of the Credit Agreement is amended to replace the amount of
"$15,000,000" contained therein with the amount of "$20,000,000".
(d) The definition of "Percentage" contained in Section 1.1 of the
Credit Agreement is amended by replacing the word "or" in the third line
thereof following the reference to "Schedule III" with a comma and adding
the words "or Schedule V" immediately following the reference to "Schedule
IV" in the third line thereof.
(e) The definition of "Term-B Loan Commitment Amount" contained in
Section 1.1 of the Credit Agreement is amended to read in its entirety as
set forth below:
"Term-B Loan Commitment Amount" means (i) in the case of
Additional Term-B Loans, the aggregate amount of all Additional Term-B
Loan Commitments established pursuant to clause (b) of Section 2.1.1,
(ii) in the case of Supplemental Term-B Loans, the Supplemental Term-B
Loan Commitment
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Amount and (iii) in the case of Successive Term-B Loans, the
Successive Term-B Loan Commitment Amount.
(f) The definition of "Term-B Loan Commitment Termination Date"
contained in Section 1.1 of the Credit Agreement is amended to read in its
entirety as set forth below:
"Term-B Loan Commitment Termination Date" means (i) in the case
of Additional Term-B Loans, the Term-B Loan Commitment Termination
Date established pursuant to clause (b) of Section 2.1.1, (ii) in the
case of Supplemental Term-B Loans, the Supplemental Term-B Loan
Commitment Termination Date and (iii) in the case of Successive Term-B
Loans, the Successive Term-B Loan Commitment Termination Date.
(g) The definition of "Term-B Loans" contained in Section 1.1 of the
Credit Agreement is amended to read in its entirety as follows:
"Term-B Loans" means, collectively, the Additional Term-B
Loans, the Supplemental Term-B Loans and the Successive Term-B Loans.
(h) The following new definitions are added to Section 1.1 of the
Credit Agreement in their appropriate alphabetical order:
"Successive Term-B Loan" is defined in clause (d) of Section
2.1.1.
"Successive Term-B Loan Commitment" is defined in clause (d) of
Section 2.1.1.
"Successive Term-B Loan Commitment Amount" means an aggregate
amount of up to $5,000,000.
"Successive Term-B Loan Commitment Termination Date" means the
earliest of (i) April 26, 2001, if the Successive Term-B Loans have
not been made on or prior to such date, (ii) the Successive Term-B
Loan Draw Date (immediately after the making of the Successive Term-B
Loans on such date), and (iii) the date on which any Commitment
Termination Event occurs.
"Successive Term-B Loan Draw Date" means the date of the
Borrowing of Successive Term-B Loans, not to be later than April 26,
2001.
SUBPART 2.2. Amendments to Article II. Article II of the Credit Agreement
is amended as set forth in this Subpart 2.2.
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SUBPART 2.2.1. Amendments to Section 2.1.1.
(a) Existing clause (d) of Section 2.1.1 of the Credit Agreement is
re-lettered as clause (e) and a new clause (d) is added immediately following
clause (c) of Section 2.1.1 of the Credit Agreement to read in its entirety as
set forth below:
"(d) Subject to compliance by the Borrower with the terms of Sections
5.2 and 5.5, on (but solely on) the Successive Term-B Loan Draw Date (which
shall be on a Business Day), each Lender that has a Percentage in excess of
zero of the Successive Term-B Loan Commitment agrees to make loans
(relative to such Lender, its "Successive Term-B Loans") to the Borrower
pursuant to Section 2.3.3 equal to such Lender's Percentage of the
aggregate amount of the Borrowing or Borrowings of Successive Term-B Loans
requested by the Borrower, pursuant to Section 2.3.3, to be made on the
Successive Term-B Loan Draw Date (with the commitment of each such Lender
described in this clause (d) herein referred to as its "Successive Term-B
Loan Commitment").".
(b) A new clause (f) is added immediately following clause (e) (as
re-lettered pursuant to clause (a) of this Subpart 2.2.1) of Section 2.1.1 of
the Credit Agreement to read in its entirety as set forth below:
"(f) Immediately following the making of the Successive Term-B Loans
on the Successive Term-B Loan Draw Date, the Lenders then holding Term-B
Loans shall be deemed to have transferred Successive Term-B Loans,
Supplemental Term-B Loans and Additional Term-B Loans among themselves in
amounts such that (i) the aggregate principal amount of Term-B Loans held
by each such Lender immediately after such transfers shall be equal to the
aggregate principal amount of Term-B Loans held by such Lender immediately
prior to such transfers, (ii) the percentage of each such Lender's Term-B
Loans that constitute Successive Term-B Loans shall be equal to the
percentage of each other such Lender's Term-B Loans that constitute
Successive Term-B Loans, (iii) the percentage of each such Lender's Term-B
Loans that constitute Term-B Loans (other than Successive Term-B Loans)
shall be equal to the percentage of each other such Lender's Term-B Loans
that constitute Term-B Loans (other than Successive Term-B Loans) and (iv)
thereafter, no distinction shall be made under this Agreement or the other
Loan Documents between Additional Term-B Loans, Supplemental Term-B Loans
and Successive Term-B Loans except that, notwithstanding anything to the
contrary set forth herein, interest accrued on Term-B Loans (other than
Successive Term-B Loans) prior to the Successive Term-B Loan Draw Date
shall be payable on the date or dates otherwise set forth herein to the
Lenders that held such Term-B Loans (other than Successive Term-B Loans)
prior to such date in proportion to the aggregate principal amount of
Term-B Loans (other than Successive Term-B Loans) held by such Lenders at
such time.".
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SUBPART 2.2.2. Amendment to Section 2.1.4. Clause (a) of Section 2.1.4
of the Credit Agreement is hereby amended to read in its entirety as set forth
below:
"(a) any Additional Term-B Loan, Supplemental Term-B Loan or
Successive Term-B Loan (as the case may be) if, after giving effect
thereto, the aggregate original principal amount of all Additional Term-B
Loans, Supplemental Term-B Loans or Successive Term-B Loans (as the case
may be) of such Lender would exceed such Lender's Percentage of the
Additional Term-B Loan Commitment Amount (in the case of Additional Term-B
Loans), the Supplemental Term-B Loan Commitment Amount (in the case of
Supplemental Term-B Loans) or the Successive Term-B Loan Commitment Amount
(in the case of Successive Term-B Loans);"
SUBPART 2.2.3. Amendment to Section 2.3. A new Section 2.3.4 is hereby
added to the Credit Agreement to read in its entirety as set forth below:
"SECTION 2.3.4. Successive Term-B Loans. The Borrower hereby requests
from each Lender that has a Percentage in excess of zero of the Successive
Term-B Loan Commitment a Borrowing of Successive Term-B Loans on the
Successive Term-B Loan Draw Date in an amount equal to such Lender's
Percentage with respect to the Successive Term-B Loan Commitment of up to
an aggregate amount of $5,000,000.
SUBPART 2.3. Amendment to Article III. The table contained in clause (i)
of Section 3.1.1 of the Credit Agreement is hereby replaced with the table set
forth below:
Term-B Loan Scheduled
Quarterly Payment Date Principal Repayment
---------------------- -------------------
June 30, 2001 $112,500
September 30, 2001 $112,500
December 31, 2001 $112,500
March 31, 2002 $112,500
June 30, 2002 $112,500
September 30, 2002 $112,500
December 31, 2002 $112,500
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Term-B Loan Scheduled
Quarterly Payment Date Principal Repayment
----------------------- -------------------
March 31, 2003 $14,654,167
June 30, 2003 $14,654,167
September 30, 2003 $14,654,167
-------------------
TOTAL: USD $44,750,000
SUBPART 2.4. Amendment to Article V. Article V of the Credit Agreement is
hereby amended to add a new Section 5.5 to read in its entirety as set forth
below:
"SECTION 5.5. Conditions Precedent to Successive Term-B Loans. The
obligation of each Lender with a Percentage of greater than zero with
respect to the Successive Term-B Loan Commitment to make a Successive
Term-B Loan on the Successive Term-B Loan Draw Date shall be subject to the
satisfaction of each of the conditions precedent set forth in Section 5.2
and this Section 5.5.
SECTION 5.5.1. Resolutions, etc. The Agents shall have received from
the Borrower a certificate, dated the Successive Term-B Loan Draw Date, of
its Secretary or Assistant Secretary as to (i) resolutions of its Board of
Directors then in full force and effect authorizing the execution, delivery
and performance of each Loan Document to be executed by it in connection
with the Borrowing of Successive Term-B Loans on the Successive Term-B Loan
Draw Date, (ii) the incumbency and signatures of those of its officers
authorized to act with respect to each Loan Document executed by it in
connection with the Borrowing of Successive Term-B Loans on the Successive
Term-B Loan Draw Date and (iii) the full force and validity of each Organic
Document of the Borrower, upon which certificate each Agent and each Lender
may conclusively rely until it shall have received a further certificate of
the Secretary or Assistant Secretary of the Borrower canceling or amending
such prior certificate.
SECTION 5.5.2. Delivery of Notes. The Agents shall have received,
for the account of each Lender that will have an aggregate principal amount
of Term-B Loans outstanding immediately after the Borrowing of Successive
Term-B Loans in excess of the aggregate principal amount of Term-B Loans of
such Lender immediately prior thereto, a Term-B Note (which, if such Lender
shall have previously received a Term-B Note evidencing Additional Term-B
Loans or Supplemental Term-B Loans, shall be issued in substitution and
exchange for, and not in satisfaction of, such Term-B Note of such Lender
evidencing Additional Term-B Loans or Supplemental Term-B Loans), dated the
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Successive Term-B Loan Draw Date, completed in accordance with Section 2.7
and duly executed and delivered by the Borrower.
SECTION 5.5.3. Opinion of Counsel. The Agents shall have received a
legal opinion, dated the Successive Term-B Loan Draw Date and addressed
to the Agents and all Lenders, from Xxxxx Xxxx & Xxxxxxxx, special
New
York counsel to the Borrower, in form and substance reasonably
satisfactory to the Agents."
SUBPART 2.5. Addition of Schedule V to Credit Agreement. The Credit
Agreement is hereby amended by adding, as Schedule V thereto, Exhibit A hereto.
PART III
REPRESENTATIONS AND WARRANTIES
SUBPART 3.1. Representations and Warranties; No Default. In order to
induce the Lenders to consent to the amendment contained in this Amendment No.
4 and the Agents to enter into this Amendment No. 4, the Borrower hereby
represents and warrants that (i) the representations and warranties contained
in Article VI of the Credit Agreement are true and correct, as of the date
hereof and as of the Amendment No. 4 Effective Date, in all material respects
with the same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date) and (ii) after
giving effect to this Amendment No. 4, no Default has occurred and is
continuing as of the date hereof and as of the Amendment No. 4 Effective Date.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Effective Date. This Amendment No. 4 shall be and become
effective upon the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Subpart 4.1 (the "Amendment No. 4 Effective
Date").
SUBPART 4.1.1. Execution of Counterparts. The Agents shall have received
counterparts of this Amendment No. 4 duly executed by the Borrower, the Issuer,
the Required Lenders, each holder of outstanding Term-B Loans and each Lender
that has a Percentage of greater than zero in respect of the Successive Term-B
Loan Commitment, as set forth on Exhibit A hereto (or evidence thereof
satisfactory to the Agents).
SUBPART 4.1.2. Payment of Fees and Expenses. The Borrower hereby agrees to
pay and reimburse the Syndication Agent for all its reasonable fees and
expenses incurred in connection with the negotiation, preparation, execution
and delivery of this Amendment No. 4 and related documents, including all
reasonable fees and disbursements of counsel to the Syndication Agent.
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SUBPART 4.1.3. Affirmation and Consent. The Agents shall have received an
affirmation and consent in the form set forth as Exhibit B hereto executed and
delivered by an Authorized Officer of Holdco and each U.S. Subsidiary of the
Borrower.
SUBPART 4.1.4. Satisfactory Legal Form. The Syndication Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Syndication Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this Amendment No. 4 shall be satisfactory to the Syndication
Agent and its counsel. All documents executed or submitted pursuant hereto or in
connection herewith shall be reasonably satisfactory in form and substance to
the Syndication Agent and its counsel.
SUBPART 4.2. Limitation. Except as expressly provided hereby, all of the
representations, warranties, terms, covenants and conditions of the Credit
Agreement and each other Loan Document shall remain unamended and unwaived and
shall continue to be, and shall remain, in full force and effect in accordance
with their respective terms, and the Credit Agreement and each other Loan
document are hereby ratified and confirmed in all respects. The amendments,
modifications and consents set forth herein shall be limited precisely as
provided for herein, and shall not be deemed to be a waiver of, amendment of,
consent to or modification or any other term or provision of the Credit
Agreement or of any term or provision of any other Loan Document or other
instrument referred to therein or herein, or of any transaction or further or
future action on the part of the Borrower or any other Person which would
require the consent of the Agents or any of the Lenders under the Credit
Agreement or any such other Loan Document or instrument.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment No. 4 to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment No. 4. References in this Amendment No. 4 to any Article or Section
are, unless otherwise specified, to such Article or Section of the Credit
Agreement.
SUBPART 5.2. Loan Document Pursuant to Credit Agreement. This Amendment No.
4 is a Loan Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement, as amended
hereby, including Article X thereof.
SUBPART 5.3. Counterparts, etc. This Amendment No. 4 may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
Agreement.
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SUBPART 5.4. Governing Law. THIS AMENDMENT NO. 4 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SUBPART 5.5. Successors and Assigns. This Amendment No. 4 shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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EXHIBIT A
SCHEDULE V
to Credit Agreement
PERCENTAGES
-----------
Successive
Term-B Loan
Commitment
-----------
Credit Suisse First Boston 100%
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
be executed by their respective officers hereunto duly authorized as of the day
and year first above written.
BRAND SERVICES, INC.
By: /s/ ??? Alexander
-----------------------
Title: VP
S-1
