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Brand Services, Inc. $150,000,000 Senior Secured Term C Loan Facility $35,000,000 Senior Secured Second Lien Term Loan Facility Commitment Letter

Letter of Credit

Brand Services, Inc. $150,000,000 Senior Secured Term C Loan Facility $35,000,000 Senior Secured Second Lien Term Loan Facility Commitment Letter | Document Parties: BRAND INTERMEDIATE HOLDINGS INC You are currently viewing:
This Letter of Credit involves

BRAND INTERMEDIATE HOLDINGS INC

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Title: Brand Services, Inc. $150,000,000 Senior Secured Term C Loan Facility $35,000,000 Senior Secured Second Lien Term Loan Facility Commitment Letter
Governing Law: New York     Date: 5/24/2005
Law Firm: Cravath Swaine    

Brand Services, Inc. $150,000,000 Senior Secured Term C Loan Facility $35,000,000 Senior Secured Second Lien Term Loan Facility Commitment Letter, Parties: brand intermediate holdings inc
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Exhibit 99.3

 

CREDIT SUISSE

Eleven Madison Avenue

New York, New York 10010

 

JPMORGAN CHASE BANK, N.A.

270 Park Avenue

New York, New York 10017

 

 

J.P. MORGAN SECURITIES INC.

270 Park Avenue

New York, New York 10017

 

CONFIDENTIAL

 

May 20, 2005

 

Brand Services, Inc.

15450 South Outer Highway 40, #270

Chesterfield, MO 63017

 

 

Brand Services, Inc.

 

$150,000,000 Senior Secured Term C Loan Facility

 

$35,000,000 Senior Secured Second Lien Term Loan Facility

 

Commitment Letter

 

Ladies and Gentlemen:

 

Brand Services, Inc., a Delaware corporation (the " Borrower " or " you " ), has advised Credit Suisse (together with its affiliates, " Credit Suisse "), JPMorgan Chase Bank, N.A. (" JPM ") and J.P. Morgan Securities Inc. (" JPMS " and, together with Credit Suisse and JPM, " we " or " us ") that you intend to acquire (the " Acquisition ") substantially all of the assets and to assume certain of the liabilities of Aluma Enterprises, Inc., a Canadian corporation (the " Company "), and to consummate the other Transactions (such term and each other capitalized term used but not defined herein having the meaning assigned to such term in the Summary of Principal Terms and Conditions attached hereto as Exhibit A (the " Term C Facility Term Sheet ")).

 

You have further advised us that, in connection therewith, (a) the Borrower will obtain the senior secured term C loan facility (the " Term C Facility ") described in the Term C Facility Term Sheet, in an aggregate principal amount of up to $150,000,000, (b) the Borrower will obtain the senior secured second lien term loan facility (the " Second Lien Term Facility ") described in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the " Second Lien Term Facility Term Sheet " and, together with the Term C Facility Term Sheet, the " Term Sheets "), in an aggregate principal amount of up to $35,000,000 and (c) the Borrower will seek to amend the Existing Credit Agreement (the " Proposed Amendment ") to, among other things, (i) allow the consummation of the Acquisition and the incurrence of the loans under the Term C Facility and the Second Lien Term Facility (the " Transactions Amendment ") and (ii) reduce the interest rate margins applicable to the Term B Loans (as defined in the Existing Credit Agreement). If the Transactions Amendment is not obtained, the Borrower will obtain the Replacement Bank Facilities described in the Term C Facility Term Sheet. The Term C Facility and the Second Lien Term Facility are collectively referred to herein as the " New Facilities ". The New Facilities and the Replacement Bank Facilities are collectively referred to herein as the " Facilities ". Unless otherwise clearly stated, all monetary amounts in this Commitment Letter and in the Fee Letter referred to below are stated in U.S. dollars.

 

 


 

 

In connection with the foregoing, (a) Credit Suisse is pleased to advise you of its commitment to provide 60% of the New Facilities, (b) JPM (together with Credit Suisse, the " Banks ") is pleased to advise you of its commitment to provide 40% of the New Facilities and (c) the Lead Arrangers (as defined below) are pleased to advise you of their agreement to use commercially reasonable efforts to arrange the Proposed Amendment, in each case upon the terms and subject to the conditions set forth or referred to in this commitment letter (including the Term Sheets and other attachments hereto, this " Commitment Letter "). In addition, if the Transactions Amendment is not obtained, (a) Credit Suisse is pleased to advise you of its commitment to provide 60% of the Replacement Bank Facilities and (b) JPM is pleased to advise you of its commitment to provide 40% of the Replacement Bank Facilities, in each case upon the terms and subject to the conditions set forth or referred to in this Commitment Letter. The commitments of the Banks hereunder are several and not joint and shall be allocated ratably among the Facilities.

 

You hereby appoint Credit Suisse and JPMS (together, in such capacity, the " Lead Arrangers ") to act, and the Lead Arrangers hereby agree to act, as exclusive joint-bookrunning managers and joint-lead arrangers for the Facilities and the Proposed Amendment. It is agreed that Credit Suisse will act as "left lead bookrunner" with respect to the Facilities and the Proposed Amendment and JPM will act as syndication agent with respect to the Facilities and the Proposed Amendment. Each Bank, in its respective capacities, will perform the duties and exercise the authority customarily performed and exercised by it in such roles. You agree that no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter) will be paid in connection with the Facilities unless you and we shall so agree.

 

The Lead Arrangers on behalf of the Banks reserve the right, prior to or after the execution of definitive documentation for the Facilities, to syndicate, in an orderly and coordinated manner, all or a portion of their commitments hereunder to a group of banks, financial institutions and other institutional lenders, other than certain institutions designated by you (" Disqualified Institutions "), (together with the Banks, the " Lenders ") identified by us with your consent (not to be unreasonably withheld or delayed). The Lead Arrangers intend to commence syndication efforts promptly upon the execution of this Commitment Letter, and you agree actively to assist them in completing a satisfactory syndication. Such assistance shall include (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and the existing lending and investment banking relationships of the Company, (b) direct contact between senior management, representatives and advisors of you and the Company and the proposed Lenders, (c) assistance by you and, to the extent reasonable and practical, the Company in the preparation of a Confidential Information Memorandum for each of the Facilities and other customary marketing materials to be used in connection with the syndications, (d) your using commercially reasonable efforts to obtain ratings for each of the Facilities from each of Standard & Poor’s Ratings Service (" S&P ") and Moody’s Investors Service, Inc. (" Moody’s ") prior to the fifteenth day preceding the Closing Date and (e) the hosting, with the Lead Arrangers, of one or more meetings of prospective Lenders. You agree, at the request of the Lead Arrangers, to assist in the preparation of a version of the Confidential Information Memorandum and other marketing materials and presentations to be used in connection with the syndication of the Facilities, consisting exclusively of information and documentation that is either (i) publicly available or (ii) not material with respect to Parent, the Borrower, the Company or their respective subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws (all such information and documentation being " Public Information "). Any information and documentation that is not Public Information is referred to herein as " Private Information ". You further agree that each document to be disseminated by the Lead Arrangers to any Lender in connection with the Facilities will be identified by you as either (i) containing Private Information or (ii) containing solely Public Information.

 

 

-2-


 

 

The Lead Arrangers will manage all aspects of any syndication with respect to the Facilities in consultation with you, including decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. To assist the Lead Arrangers in their syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts to cause the Company to provide) to the Lead Arrangers all information reasonably available with respect to Parent, the Borrower, the Company and their respective subsidiaries, the Transactions and the other transactions contemplated hereby, including all financial information and projections (the " Projections "), as we may reasonably request. You hereby represent and covenant (and it shall be a condition to our commitment and agreement hereunder) that (a) all information other than the Projections (the " Information ") that has been or will be made available to the Lead Arrangers by you or any of your representatives is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) the Projections that have been or will be made available to the Lead Arrangers by you or any of your representatives have been or will be prepared in good faith based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lead Arrangers, it being understood that actual results may vary materially from the Projections. You agree that if at any time prior to the closing of the Facilities any of the representations in the preceding sentence would be incorrect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement the Information and the Projections to the extent of Information available to you so that such representations will be correct under those circumstances. In arranging and syndicating the Facilities, we will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

 

As consideration for the commitments of the Banks hereunder and agreement of the Lead Arrangers to perform the services described herein, you agree to pay to the Banks the fees set forth in this Commitment Letter and in the fee letter dated the date hereof and delivered herewith with respect to the Facilities (the " Fee Letter ").

 

The commitments of the Banks and the Lead Arrangers hereunder and their agreements to perform the services described herein are subject to (a) our not having discovered or otherwise become aware of any information not previously disclosed to us that we believe to be inconsistent in a material and adverse manner with our understanding, based on the information provided to us prior to the date hereof, of the business, assets, liabilities, operations, financial condition, operating results or Projections of the Company and its subsidiaries or the Borrower and its subsidiaries, in each case, taken as a whole, (b) there not having occurred any change, event, fact, condition, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect or change on the condition (financial or otherwise), properties, business, results of operations, assets, liabilities or operations of (i) the Borrower and its subsidiaries, taken as a whole, or (ii) the Company and its subsidiaries, taken as a whole, in each case since December 31, 2004, (c) our satisfaction that, prior to and during the syndication of the Facilities, there shall be no other issues of debt securities or commercial bank or other credit facilities of Parent, the Borrower, the Company or their respective subsidiaries being offered, placed or arranged that could reasonably be expected to adversely affect the syndication of the Facilities, (d) the negotiation, execution and delivery of definitive documentation with respect to the Facilities reasonably satisfactory to the Lead Arrangers and their counsel, (e) the Lead Arrangers (on behalf of the Banks) having been afforded a period of at least 20 consecutive days following the launch of the general syndication of the Facilities and immediately prior to the Closing Date to syndicate the Facilities, (f) your compliance, in all material respects, with the terms of this Commitment Letter and the Fee Letter, and (g) the other conditions set forth or referred to in the Term Sheets and the other exhibits hereto.

 

 

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You agree (a) to indemnify and hold harmless each of the Banks and Lead Arrangers and their respective affiliates and their respective officers, directors, employees, agents, advisors, controlling persons, members and successors and assigns (each, an " Indemnified Person ") from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Facilities or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto, and to reimburse each such Indemnified Person upon demand for any reasonable legal expenses (with, subject to customary exceptions for actual or potential conflicts of interest, all Indemnified Persons to use a single counsel in each jurisdiction) or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Person, and (b) to reimburse each of the Banks and the Lead Arrangers from time to time, upon presentation of a summary statement, for all reasonable and documented out-of-pocket expenses (including but not limited to expenses of the Banks’ due diligence investigation, consultants’ fees, syndication expenses, travel expenses and fees, disbursements and other charges of Cravath, Swaine & Moore LLP plus required local counsel), in each case incurred in connection with the Facilities and the preparation of this Commitment Letter, the Fee Letter, the definitive documentation for the Facilities and any security arrangements in connection therewith; provided that, in the event that the Closing Date does not occur, your obligations under this clause (b) shall be limited to 50% of the fees, disbursements and other charges of Cravath, Swaine & Moore LLP and required local counsel. Notwithstanding any other provision of this Commitment Letter, no Indemnified Person shall be liable for any damages arising from the unauthorized use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems or for any indirect, special, punitive or consequential damages in connection with its activities related to the Facilities.

 

You acknowledge that the Banks, the Lead Arrangers and their affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. In particular, an affiliate of Credit Suisse is acting as financial advisor to the Company in connection with the proposed Acquisition. Neither we nor any of our affiliates will use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you in connection with the performance by us of services for other companies, and we will not furnish any such information to other companies. You also acknowledge that neither we nor any of our affiliates has any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies, and that we shall not be imputed to have knowledge of confidential information provided to or obtained by Credit Suisse’s affiliate in its capacity as financial advisor to the Company.

 

This Commitment Letter shall not be assignable by you without the prior written consent of the Lead Arrangers (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons) and is not intended to create a fiduciary relationship between the parties hereto. Any and all obligations of, and services to be provided by, the Banks and the Lead Arrangers hereunder (including, without limitation, each Bank’s commitment) may be performed and any and all rights of the Banks and the Lead Arrangers hereunder may be exercised by or through any of their respective affiliates or branches. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Banks, the Lead Arrangers and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter and the Fee Letter supersede all prior understandings, whether written or oral, between us with respect to the Facilities.

 

 

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THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the non-exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby in any New York State court or in any such Federal court and (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee Letter nor any of their terms or substance shall be disclosed, directly or indirectly, to any other person except (a) to your officers, directors, employees, attorneys, accountants and advisors on a confidential and need-to-know basis or (b) as required by applicable law or compulsory legal process (in which case you agree to inform us promptly thereof); provided that you may disclose this Commitment Letter and the contents hereof (but not the Fee Letter or the contents thereof) to the Company and its controlling stockholders and their respective officers, directors, employees, attorneys, accountants and advisors, on a confidential and need-to-know basis.

 

Notwithstanding anything herein to the contrary, any party to this Commitment Letter (and any employee, representative or other agent of such


 
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