BRAND SERVICES, INC. AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 10.4
BRAND
SERVICES, INC.
AMENDMENT
NO. 3 TO CREDIT AGREEMENT
This
AMENDMENT
NO. 3 TO CREDIT AGREEMENT (this
"Amendment") is
dated as of January 14, 2005, and entered into by and among BRAND
SERVICES, INC. ("Borrower"),
THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
("Lenders"), and
CREDIT
SUISSE FIRST BOSTON, as
administrative agent for Lenders (in such capacity, "Administrative
Agent"), and,
solely for purposes of Section 4 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, JPMorgan Chase Bank, as
syndication agent for Lenders, Administrative Agent, Credit Suisse First Boston
and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint lead arrangers and book managers, and
Antares Capital Corporation and General Electric Capital Corporation, as
co-documentation agents for Lenders, as amended by that certain First Amendment
and Limited Waiver to Credit Agreement dated as of February 3, 2004, and
that certain Amendment No. 2 and Limited Waiver No. 3 to Credit
Agreement dated as of November 9, 2004 (as so amended, 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, the
parties hereto desire to amend the Credit Agreement as set forth herein, 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. AMENDMENT TO CREDIT
AGREEMENT
Subsection
7.7(i) of the Credit Agreement is hereby amended by inserting the following text
immediately before the semicolon at the end of such subsection:
"and
(z) any Subsidiary of Borrower may (1) convert from a corporation to a
limited liability company, or vice versa, or (2) change its jurisdiction of
incorporation or formation, in either case so long as (a) if such
Subsidiary was a Domestic Subsidiary before giving effect to such conversion or
change, it will continue to be a Domestic Subsidiary after giving effect to such
conversion or change, (b) if such Subsidiary was a Subsidiary Guarantor
before giving effect to such conversion or change, it will continue to be a
Subsidiary Guarantor after giving effect to such conversion or change,
(c) if the Capital Stock of such Subsidiary was pledged to Administrative
Agent (or to any Supplemental Collateral Agent), for the benefit of Lenders,
before giving effect to such conversion or change, it will continue to be (or
will immediately become) pledged to Administrative Agent (or to a Supplemental
Collateral Agent), for the benefit of Lenders, after giving effect to such
conversion or change, (d) Borrower shall deliver a written notice under
subsection 6.1(xv) with respect to such Subsidiary as though such
Subsidiary had become a Subsidiary of Parent or Borrower as a result of such
conversion or change (it being understood that such written notice shall be
deemed to supplement Schedule 5.1 annexed
hereto for all purposes of this Agreement), and (e) Borrower shall, and
shall cause the other Loan Parties to, give notice of such conversion or change
in accordance with the Security Agreement, deliver updated schedules to the
Security Agreement, take such other actions as may be required under the
Security Agreement, this Agreement, and the other Loan Documents, and take such
further actions (including, without limitation, actions similar to those
contemplated by subsections 6.8 and 6.9 of this Agreement) as may be
necessary or, in the opinion of Administrative Agent, desirable in order to
continue and maintain the existence, attachment, perfection, and priority of all
Liens in favor of Administrative Agent (or any Supplemental Collateral Agent),
for the benefit of Lenders, on the Capital Stock or assets of such Subsidiary as
in effect before giving effect to such conversion or change".
SECTION
2. CONDITIONS TO
EFFECTIVENESS
Section 1
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 "Amendment
Effective Date"):
A. Execution and
Delivery. The
Borrower, the Administrative Agent, the 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 signed one or more
counterparts to this Amendment and delivered such counterparts to O’Melveny
& ▇▇▇▇▇ LLP, counsel to the Administrative Agent (including, without
limitation, delivery via facsimile or electronic mail).
B. 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 & ▇▇▇▇▇ LLP) in connection with the
Credit Agreement and this Amendment and all documents and transactions related
thereto and hereto.
SECTION
3. BORROWER’S
REPRESENTATIONS AND WARRANTIES
In order
to induce Lenders to enter into this Amendment, Borrower represents and warrants
to each Lender that the following statements are true, correct and complete:
A. Corporate
Power and Authority.
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. Authorization
of Agreements. The
execution and delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate action on the
part of Borrower.
C. No
Conflict. 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 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. Governmental
Consents. 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. Binding
Obligation. 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. Incorporation
of Representations and Warranties from Credit Agreement. 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 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.
G. Absence of
Default. 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.
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SECTION
4. ACKNOWLEDGEMENT AND
CONSENT
Parent
and each Subsidiary of Borrower (each individually a "Credit
Support Party" and
collectively, the "Credit
Support Parties") hereby
acknowledges that it has read this Amendment and consents to the terms hereof
and further hereby confirms and agrees that, notwithstanding the effectiveness
of this Amendment, the obligations of such Credit Support Party under each of
the Loan Documents to which such Credit Support Party is a party shall not be
impaired and each of the Loan Documents to which such Credit Support Party is a
party are, and shall continue to be, in full force and effect and are hereby
confirmed and ratified in all respects.
Parent
and each Subsidiary of Borrower acknowledges and agrees that nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
SECTION
5. MISCELLANEOUS
A. Reference to
and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and after
the 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.
(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 (including, without limitation, the reasonable fees, expenses and
disbursements of O’Melveny & ▇▇▇▇▇ LLP, counsel to the Administrative Agent)
with respect to this Amendment and the documents and transactions contemplated
hereby shall be for the account of Borrower.
C. Headings. Section
and subsection headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
D. Applicable
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF ANOTHER
LAW.
E. Counterparts;
Effectiveness. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Amendment (other than
the provisions of Section 1 hereof, the effectiveness of which is governed
by Section 2 hereof) shall become effective on the date when counterparts
hereof signed by the Borrower, Administrative Agent, 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
O’Melveny & ▇▇▇▇▇ LLP, counsel to the Administrative Agent (including,
without limitation, delivery via facsimile or electronic mail).
* * * *
*
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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. | ||
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| By: | /s/ | |
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| Title | ||
| CREDIT SUPPORT PARTIES: BRAND INTERMEDIATE HOLDINGS, INC. | ||
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| By: | /s/ | |
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| Title | ||
| BRAND SCAFFOLD BUILDERS, INC. | ||
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| By: | /s/ | |
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| Title | ||
| CREDIT SUPPORT PARTIES: BRAND SCAFFOLD RENTAL & ERECTION, INC. (for purposes of Section 4 only) | ||
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| By: | /s/ | |
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| Title | ||
| ▇▇▇▇▇▇▇▇▇ STAFFING, INC. | ||
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| By: | /s/ | |
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| Title | ||
| BRAND SCAFFOLD SERVICES, INC. | ||
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| By: | /s/ | |
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| Title | ||
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| BRAND STAFFING SERVICES, INC. | ||
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| By: | /s/ | |
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| Title | ||
| CREDIT SUPPORT PARTIES: BRAND SPECIAL EVENTS, INC. (for purposes of Section 4 only) | ||
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| By: | /s/ | |
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| Title | ||
| BRAND SCAFFOLD ERECTORS, INC. | ||
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| By: | /s/ | |
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| Title | ||
| SCAFFOLD BUILDING SERVICES, INC. | ||
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| By: | /s/ | |
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| Title | ||
| SKYVIEW STAFFING, INC. | ||
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| By: | /s/ | |
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| Title | ||
|
CREDIT SUPPORT
PARTIES: BRANDCRAFT LABOR, INC.
(for purposes of Section
4 only) | ||
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| By: | /s/ | |
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| Title | ||
| SKYVIEW SAFETY SERVICES, INC. | ||
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| By: | /s/ | |
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| Title | ||
| SCAFFOLD-JAX, INC. | ||
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| By: | /s/ | |
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| Title | ||
| CREDIT SUPPORT PARTIES: ▇▇▇▇ ▇▇▇▇▇-GRANDSTANDS, INC. (for purposes of Section 4 only) | ||
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| By: | /s/ | |
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| Title | ||
| KWIKRIG, INC. | ||
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| By: | /s/ | |
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| Title | ||
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LENDERS
|
CREDIT SUISSE FIRST
BOSTON
acting through its Cayman Islands Branch, as
Administrative Agent, Co-Arranger and Lender | ||
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| By: | /s/ | |
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| Title | ||
| JPMORGAN CHASE BANK, as Syndication Agent | ||
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| By: | /s/ | |
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| Title | ||
| ▇.▇.▇▇▇▇▇▇ SECURITIES INC. | ||
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| By: | /s/ | |
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| Title | ||
|
GENERAL ELECTRIC CAPITAL
CORPORATION
as Co-Documentation Agent and
Lender | ||
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| By: | /s/ | |
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| Title | ||
|
ANTARES CAPITAL
CORPORATION
as Co-Documentation Agent and
Lender | ||
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| By: | /s/ | |
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| Title | ||
| [NAME OF LENDER] | ||
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Name of Investment Advisor |
| By: |
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| Title | ||