<Page>
EXHIBIT 10.1
CREDIT AGREEMENT, DATED AS OF FEBRUARY 20, 2002, AMONG AMERICAN
ACHIEVEMENT CORPORATION, AS THE BORROWER, THE LENDERS PARTY
THERETO AND THE BANK OF NOVA SCOTIA, AS THE ADMINISTRATIVE AGENT
FOR THE LENDERS
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CREDIT AGREEMENT,
dated as of February 20, 2002,
among
AMERICAN ACHIEVEMENT CORPORATION,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS
FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
GENERAL ELECTRIC CAPITAL CORPORATION,
as the Syndication Agent for the Lenders,
BANKERS TRUST COMPANY,
as the Documentation Agent for the Lenders,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders.
----------------------------------
THE BANK OF NOVA SCOTIA,
as Sole Lead Arranger and Sole Book Runner
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<Table>
SECTION 1.1. Defined Terms..........................................................................2
SECTION 1.2. Use of Defined Terms..................................................................31
SECTION 1.3. Cross-References......................................................................31
SECTION 1.4. Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.............................................................................31
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND
LETTERS OF CREDIT
SECTION 2.1. Commitments...........................................................................32
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment...................32
SECTION 2.1.2. Letter of Credit Commitment................................................32
SECTION 2.2. Reduction of the Commitment Amounts...................................................33
SECTION 2.2.1. Optional...................................................................33
SECTION 2.3. Borrowing Procedures..................................................................33
SECTION 2.3.1. Borrowing Procedure........................................................33
SECTION 2.3.2. Swing Line Loans...........................................................34
SECTION 2.4. Continuation and Conversion Elections.................................................35
SECTION 2.5. Funding...............................................................................35
SECTION 2.6. Issuance Procedures...................................................................35
SECTION 2.6.1. Other Lenders' Participation...............................................35
SECTION 2.6.2. Disbursements..............................................................36
SECTION 2.6.3. Reimbursement..............................................................36
SECTION 2.6.4. Deemed Disbursements.......................................................37
SECTION 2.6.5. Nature of Reimbursement Obligations........................................37
SECTION 2.7. Notes.................................................................................38
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application...............................................38
SECTION 3.1.1. Repayments and Prepayments.................................................38
SECTION 3.1.2. Application................................................................39
SECTION 3.2. Interest Provisions...................................................................40
</Table>
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<Table>
SECTION 3.2.1. Rates......................................................................40
SECTION 3.2.2. Post-Maturity Rates........................................................40
SECTION 3.2.3. Payment Dates..............................................................40
SECTION 3.3. Fees..................................................................................41
SECTION 3.3.1. Utilization Fee............................................................41
SECTION 3.3.2. Agent's Fee................................................................41
SECTION 3.3.3. Letter of Credit Fee.......................................................41
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful............................................................41
SECTION 4.2. Deposits Unavailable..................................................................42
SECTION 4.3. Increased LIBO Rate Loan Costs, etc...................................................42
SECTION 4.4. Funding Losses........................................................................43
SECTION 4.5. Increased Capital Costs...............................................................43
SECTION 4.6. Taxes.................................................................................44
SECTION 4.7. Payments, Computations, etc...........................................................46
SECTION 4.8. Sharing of Payments...................................................................47
SECTION 4.9. Setoff................................................................................47
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension..............................................................48
SECTION 5.1.1. Resolutions, etc...........................................................48
SECTION 5.1.2. Closing Date Certificate...................................................48
SECTION 5.1.3. Issuance of Senior Unsecured Notes.........................................48
SECTION 5.1.4. Payment of Outstanding Indebtedness, etc...................................49
SECTION 5.1.5. Closing Fees, Expenses, etc................................................49
SECTION 5.1.6. Financial Information, etc.................................................49
SECTION 5.1.7. Compliance Certificate.....................................................49
SECTION 5.1.8. Opinions of Counsel........................................................49
SECTION 5.1.9. Filing Agent, etc..........................................................50
SECTION 5.1.10. Subsidiary Guaranty........................................................50
SECTION 5.1.11. Solvency, etc..............................................................50
SECTION 5.1.12. Pledge and Security Agreements.............................................50
</Table>
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<Table>
SECTION 5.1.13. Patent Security Agreement, Copyright Security Agreement and Trademark
Security Agreement.........................................................51
SECTION 5.1.14. Insurance..................................................................51
SECTION 5.1.15. Mortgages..................................................................52
SECTION 5.1.16. Intercreditor Agreement....................................................52
SECTION 5.1.17. Delivery of Notes..........................................................52
SECTION 5.1.18. Revolving Loan Commitment Amount Availability..............................52
SECTION 5.1.19. CBI Indenture Acknowledgment...............................................52
SECTION 5.2. All Credit Extensions.................................................................52
SECTION 5.2.1. Compliance with Warranties, No Default, etc................................52
SECTION 5.2.2. Credit Extension Request, etc..............................................53
SECTION 5.2.3. Satisfactory Legal Form....................................................53
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, Powers, Capitalization and Good Standing................................53
SECTION 6.2. Due Authorization, Non-Contravention, etc.............................................54
SECTION 6.3. Government Approval, Regulation, etc..................................................55
SECTION 6.4. Intellectual Property.................................................................55
SECTION 6.5. Financial Statements and Projections..................................................55
SECTION 6.6. No Material Adverse Change............................................................56
SECTION 6.7. Litigation: Adverse Effects..........................................................56
SECTION 6.8. Solvency..............................................................................56
SECTION 6.9. Taxes.................................................................................56
SECTION 6.10. Environmental Warranties..............................................................56
SECTION 6.11. Disclosure............................................................................57
SECTION 6.12. Use of Proceeds: Margin Regulations..................................................58
SECTION 6.13. CBI Senior Subordinated Notes.........................................................58
SECTION 6.14. No Default............................................................................58
SECTION 6.15. Investigations, Audits, etc...........................................................58
SECTION 6.16. Employee Matters......................................................................58
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.................................................................59
</Table>
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<Table>
SECTION 7.1.1. Financial Statements and Other Reports.....................................59
SECTION 7.1.2. Compliance With Laws and Contractual Obligations...........................62
SECTION 7.1.3. Maintenance of Properties; Insurance.......................................62
SECTION 7.1.4. Inspection; Lender Meeting.................................................63
SECTION 7.1.5. Corporate/Limited Partnership Existence....................................64
SECTION 7.1.6. Environmental Law Covenant.................................................64
SECTION 7.1.7. Use of Proceeds............................................................64
SECTION 7.1.8. Further Assurances.........................................................65
SECTION 7.1.9. Landlord Estoppel Letters..................................................66
SECTION 7.1.10. Title Insurance............................................................66
SECTION 7.2. Negative Covenants....................................................................66
SECTION 7.2.1. Conduct of Business........................................................66
SECTION 7.2.2. Indebtedness...............................................................66
SECTION 7.2.3. Liens and Related Matters..................................................68
SECTION 7.2.4. Financial Condition and Operations.........................................70
SECTION 7.2.5. Investments; Joint Ventures................................................71
SECTION 7.2.6. Restricted Junior Payments.................................................72
SECTION 7.2.7. Capital Expenditures, etc..................................................73
SECTION 7.2.8. Contingent Liabilities.....................................................74
SECTION 7.2.9. Issuance of Capital Securities.............................................75
SECTION 7.2.10. Restriction on Fundamental Changes.........................................75
SECTION 7.2.11. Disposal of Assets or Subsidiary Stock.....................................75
SECTION 7.2.12. Changes Relating to Indebtedness/Gold Consignment Agreement................77
SECTION 7.2.13. Transactions with Affiliates...............................................78
SECTION 7.2.14. No Restrictions on Subsidiary Distributions to Obligors....................79
SECTION 7.2.15. Sale and Leaseback; Landlord Waiver........................................80
SECTION 7.2.16. Subsidiaries...............................................................80
SECTION 7.2.17. Accounting Changes.........................................................80
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default..........................................................80
SECTION 8.1.1. Payment....................................................................80
</Table>
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<Table>
SECTION 8.1.2. Breach of Warranty.........................................................81
SECTION 8.1.3. Breach of Certain Provisions...............................................81
SECTION 8.1.4. Other Defaults Under Loan Documents........................................81
SECTION 8.1.5. Default in Other Agreements................................................81
SECTION 8.1.6. Judgments and Attachments..................................................81
SECTION 8.1.7. ERISA; Pension Plans.......................................................82
SECTION 8.1.8. Change in Control..........................................................82
SECTION 8.1.9. Involuntary Bankruptcy; Appointment of Receiver, etc.......................82
SECTION 8.1.10. Failure of Security........................................................82
SECTION 8.1.11. Failure of Subordination...................................................83
SECTION 8.1.12. Damages; Casualty..........................................................83
SECTION 8.1.13. Licenses and Permits.......................................................83
SECTION 8.1.14. Change of Control/Asset Sale Under CBI Indenture...........................83
SECTION 8.1.15. Net Operating Losses.......................................................83
SECTION 8.1.16. Injunction.................................................................83
SECTION 8.1.17. Environmental Matters......................................................84
SECTION 8.1.18. Dissolution................................................................84
SECTION 8.1.19. Solvency...................................................................84
SECTION 8.1.20. Invalidity of Loan Documents...............................................84
SECTION 8.1.21. Event of Default under Gold Consignment Agreement..........................84
SECTION 8.1.22. Conduct of Business........................................................84
SECTION 8.2. Action if Bankruptcy..................................................................84
SECTION 8.3. Action if Other Event of Default......................................................84
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. Actions...............................................................................85
SECTION 9.2. Funding Reliance, etc.................................................................85
SECTION 9.3. Exculpation...........................................................................86
SECTION 9.4. Successor.............................................................................86
SECTION 9.5. Loans by Scotia Capital...............................................................87
SECTION 9.6. Credit Decisions......................................................................87
SECTION 9.7. Copies, etc...........................................................................87
SECTION 9.8. Reliance by Administrative Agent......................................................87
</Table>
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<Table>
SECTION 9.9. Defaults..............................................................................88
SECTION 9.10. Other Agents..........................................................................88
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc..............................................................88
SECTION 10.2. Notices; Time.........................................................................89
SECTION 10.3. Payment of Costs and Expenses.........................................................90
SECTION 10.4. Indemnification.......................................................................90
SECTION 10.5. Survival..............................................................................91
SECTION 10.6. Severability..........................................................................91
SECTION 10.7. Headings..............................................................................92
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.........................................92
SECTION 10.9. Governing Law; Entire Agreement.......................................................92
SECTION 10.10. Successors and Assigns................................................................92
SECTION 10.11. Sale and Transfer of Credit Extensions; Participations in Credit Extensions
and Notes.............................................................................92
SECTION 10.11.1. Assignments................................................................92
SECTION 10.11.2. Participations.............................................................94
SECTION 10.12. Other Transactions....................................................................96
SECTION 10.13. Forum Selection and Consent to Jurisdiction...........................................96
SECTION 10.14. Waiver of Jury Trial..................................................................96
</Table>
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBOR Office; Domestic Office
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of Borrowing Base Certificate
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Borrower Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Subsidiary Guaranty
EXHIBIT G-1 - Form of Borrower Pledge and Security Agreement
EXHIBIT G-2 - Form of Subsidiary Pledge and Security Agreement
EXHIBIT H - Form of Deed of Trust
EXHIBIT I - Form of Interco Subordination Agreement
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EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Intercreditor Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 20, 2002, is among AMERICAN
ACHIEVEMENT CORPORATION (formerly known as COMMEMORATIVE BRANDS HOLDING CORP.),
a Delaware corporation (the "BORROWER"), the various financial institutions and
other Persons from time to time parties hereto (the "LENDERS"), General Electric
Capital Corporation, as the syndication agent for the Lenders (the "SYNDICATION
AGENT"), BANKERS TRUST COMPANY, as the documentation agent for the Lenders (the
"DOCUMENTATION AGENT") and THE BANK OF NOVA SCOTIA ("SCOTIA CAPITAL"), as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders and as the Sole Lead Arranger and Sole Book Runner.
W I T N E S S E T H:
WHEREAS, the Borrower intends to refinance (the "REFINANCING") existing
Indebtedness of the Borrower and certain of its Subsidiaries in an amount equal
to $176,791,846.57, consisting of (i) $138,742,516.98 outstanding under that
certain Second Amended and Restated Credit Agreement, dated as of March 30,
2001, entered into by and among Commemorative Brands, Inc., a Delaware
corporation ("CBI"), TP Holding Corp. (f/k/a TP Acquisition Corp.), a Delaware
corporation ("TAYLOR HOLDING CO."), Taylor Publishing Company, a Delaware
corporation ("TAYLOR GENERAL PARTNER"), Taylor Production Services Company,
L.P., a Delaware limited partnership ("TAYLOR"), Educational Communications,
Inc., an Illinois corporation ("ECI", and collectively with CBI, Taylor Holding
Co., Taylor General Partner and Taylor, the "EXISTING BORROWERS", and
individually, each an "EXISTING BORROWER"), the lenders party thereto, Heller
Financial, Inc., as administrative agent to the lenders thereunder, Key
Corporate Capital, Inc., as syndication agent to the lenders thereunder, and
Scotia Capital, as documentation agent to the lenders thereunder (the "EXISTING
CREDIT AGREEMENT"), (ii) $28,382,918.10 of subordinated debt outstanding owed to
CHP III under (A) two promissory notes issued by Taylor Holding Co. the
aggregate principal amount of approximately $18,500,000 and (B) a promissory
note issued by the Borrower in the principal amount of approximately $9,200,000
(collectively, the "EXISTING PROMISSORY NOTES"), (iii) settlement amounts in the
aggregate amount of $1,706,766 owed by the Borrower and its Subsidiaries with
respect to certain interest rate swap agreements (the "SWAP AMOUNTS"), and (iv)
fees and expenses related to the consummation of the Refinancing and the
transactions contemplated hereby and thereby, in the aggregate amount of
approximately $7,959,645.49;
WHEREAS, in order to consummate the Refinancing, the Borrower intends to
issue 115/8% Senior Unsecured Notes due 2007 in an original principal amount
equal to $177,000,000 (the "SENIOR UNSECURED NOTES"), pursuant to the Indenture;
WHEREAS, in order to consummate the Refinancing and to provide for the
general corporate and working capital needs of the Borrower and certain of its
Subsidiaries, the Borrower desires to obtain from the Lenders a (a) Revolving
Loan Commitment and (b) Swing Line Loan Commitment (which shall be a
sub-facility of the Revolving
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Loan Commitment) and, from the Issuers, a Letter of Credit Commitment (which
shall be a sub-facility of the Revolving Loan Commitment), with all the proceeds
of such Credit Extensions to be used for one or more of the purposes specified
in SECTION 7.1.7; and
WHEREAS, the Lenders and the Issuers are willing, on the terms and subject
to the conditions hereinafter set forth, to extend the Commitments and make
Loans to the Borrower and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ACCOUNT" means any account (as that term is defined in SECTION
9-102(a)(2)(i) of the UCC) of the Borrower or any of its wholly owned U.S.
Subsidiaries arising from the sale or lease of goods or rendering of services.
"ACCOUNT CONTROL AGREEMENT" means the control agreement executed and
delivered by each of Taylor Holding Co., the Administrative Agent, and State
Street Bank and Trust Company, in form and substance satisfactory to the
Administrative Agent.
"ACCOUNTING CHANGES" means: (a) changes in accounting principles required
by GAAP and implemented by the Borrower or any of its Subsidiaries and (b)
changes in accounting principles recommended by the Borrower's certified public
accountants and implemented by the Borrower or any of its Subsidiaries.
"ADDITIONAL EQUITY" means the amount of cash received by the Borrower
following the Closing Date in consideration for the issuance of its Capital
Securities (other than Disqualified Capital Securities).
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each other
Person appointed as the successor Administrative Agent pursuant to SECTION 9.4.
"AFFILIATE" means as to any Person: (a) each person directly or indirectly
controlling, controlled by, or under common control with such Person; (b) each
Person that, directly or indirectly owns or holds ten percent (10%) or more of
whose voting stock or other equity interest is directly or indirectly owned or
held by such Person. For purposes of this definition, "CONTROL" (including with
correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or otherwise.
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"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified from time to time and
in effect on such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus1/2of 1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate; PROVIDED, that the
failure to give such notice shall not affect the Alternate Base Rate in effect
after such change.
"APPLICABLE MARGIN" means the applicable percentage set forth below
corresponding to the relevant Leverage Ratio:
<Table>
<Caption>
Applicable Applicable
Leverage Margin For Margin For
Ratio Base Rate Loans LIBO Rate Loans
----- --------------- ---------------
GREATER THAN5.00:1 3.25% 4.25%
GREATER THAN 4.50:1 but LESS THAN OR EQUAL TO 5.00:1 2.75% 3.75%
GREATER THAN 4.00:1 but LESS THAN OR EQUAL TO 4.50:1 2.50% 3.50%
GREATER THAN 3.50:1 but LESS THAN OR EQUAL TO 4.00:1 2.25% 3.25%
GREATER THAN 3.00:1 but LESS THAN OR EQUAL TO 3.50:1 2.00% 3.00%
LESS THAN OR EQUAL TO 3.00:1 1.50% 2.50%
</Table>
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), the Applicable Margin for all Loans from the
Effective Date through (and including) the date (referred to as the "DELIVERY
DATE") of the delivery of the quarterly financial information required pursuant
to CLAUSE (a) of SECTION 7.1.1 in respect of the second full Fiscal Quarter
following the Effective Date shall be at least 3.5% in the case of LIBO Rate
Loans and at least 2.5% in the case of Base Rate Loans. The Leverage Ratio used
to compute the Applicable Margin shall be the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent. Changes in the Applicable Margin resulting from a change
in the Leverage Ratio shall become effective upon delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (c)
of SECTION 7.1.1. If the Borrower shall fail to deliver a Compliance Certificate
within 45 days after the end of any Fiscal Quarter (or within 90 days, in the
case of the last Fiscal Quarter of the
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Fiscal Year), the Applicable Margin from and including the 46th (or 91st, as the
case may be) day after the end of such Fiscal Quarter to but not including the
date the Borrower delivers to the Administrative Agent a Compliance Certificate
shall conclusively equal the highest Applicable Margin set forth above.
"APPLICABLE UTILIZATION FEE MARGIN" means the applicable percentage set
forth below corresponding to the applicable Utilization Ratio:
<Table>
<Caption>
Utilization Applicable Utilization
Ratio Fee Margin
----------- ----------
GREATER THAN 50% 0.50%
GREATER THAN 25% but LESS THAN OR EQUAL TO 50% 0.75%
LESS THAN OR EQUAL TO 25% 1.00%
</Table>
The Utilization Ratio used to compute the Applicable Utilization Fee Margin
shall be determined by the Administrative Agent (which determination shall be
conclusive absent manifest error) following the last day of each Fiscal Quarter,
and shall be assessed for the Fiscal Quarter most recently ended.
Notwithstanding anything to the contrary set forth in this Agreement (including
the immediately preceding sentence), the Applicable Utilization Fee Margin from
the Effective Date through (and including) the Delivery Date shall be at least
.75%.
"ASSET DISPOSITION" means the Disposition whether by sale, lease, transfer,
loss, damage, destruction, condemnation or otherwise of (a) any of the Capital
Securities of any Subsidiary Guarantor or (b) any or all of the assets of the
Borrower or any Subsidiary Guarantor other than sales of inventory in the
ordinary course of business.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1.
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its officers,
general partners or managing members (as applicable) whose signatures and
incumbency shall have been certified to the Administrative Agent, the Lenders
and the Issuers pursuant to SECTION 5.1.1.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"BANKRUPTCY", as amended from time to time or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect and all rules and
regulations promulgated thereunder.
"BASE RATE" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for Dollars
loaned in the United States. The Base Rate is not necessarily intended to be the
lowest rate of interest determined by the Administrative Agent in connection
with extensions of credit.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the PREAMBLE.
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"BORROWER CLOSING DATE CERTIFICATE" means the closing date certificate
executed and delivered by an Authorized Officer of the Borrower substantially in
the form of EXHIBIT D hereto.
"BORROWER PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement executed and delivered by an Authorized Officer of the Borrower,
substantially in the form of EXHIBIT G-1 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"BORROWING" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with SECTION 2.1.
"BORROWING BASE AMOUNT" means, at any time, the difference of (x) the Net
Asset Value of all Eligible Accounts and Eligible Inventory at such time as
determined in accordance with the definition of "Net Asset Value", LESS (y) the
then applicable "Account Receivable Reported Amount" (as defined in the
Intercreditor Agreement), in each case as certified by the Borrower to the
Lenders in the most recently delivered Borrowing Base Certificate, including the
Borrowing Base Certificate delivered on the Closing Date pursuant to CLAUSE (c)
of SECTION 5.1.6, LESS (z) any amount deducted from the Borrowing Base Amount to
the extent required pursuant to CLAUSE (b) of SECTION 7.2.15.
"BORROWING BASE CERTIFICATE" means a certificate, substantially in the form
of EXHIBIT B-3 hereto, duly completed and executed by an Authorized Officer that
is the president, the chief executive officer, the chief financial or accounting
officer, or the treasurer or assistant treasurer of the Borrower (or, prior to
March 20, 2002, duly completed and executed by the controller of the Borrower,
PROVIDED such Person's signature and incumbency shall have been certified to the
Administrative Agent, the Lenders and the Issuer pursuant to SECTION 5.1.1).
"BORROWING REQUEST" means a Loan request and certificate duly executed by
an Authorized Officer of the Borrower substantially in the form of EXHIBIT B-1
hereto.
"BUSINESS DAY" means (a) for all purposes other than as covered by CLAUSE
(b) below, any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the Commonwealth of Pennsylvania, the State of New
York or the State of Illinois, or is a day on which banking institutions located
in any such states are closed, and (b) with respect to all notices,
determinations, fundings and payments in connection with LIBO Rate Loans, any
day that is a Business Day described in CLAUSE (a) above and that is also a day
for trading by and between banks in Dollar deposits in the applicable interbank
LIBOR market.
"CAPITAL EXPENDITURES" means, for any period and without duplication, the
aggregate amount of (a) all expenditures of the Borrower and its Subsidiaries
for fixed or capital assets made during such period which, in accordance with
GAAP, would be classified as capital expenditures and (b) Capitalized Lease
Liabilities incurred by the Borrower and its Subsidiaries during such period.
"CAPITAL SECURITIES" means (a) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not
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voting) of corporate stock, including each class of Common Stock and Preferred
Stock of such Person, and all options, warrants or other rights to purchase or
acquire any of the foregoing; and (b) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity interests of
such Person, and all options, warrants or other rights to purchase or acquire
any of the foregoing.
"CAPITALIZATION DOCUMENTS" means, collectively: (a) any or all of the
certificates, notes, debentures or other instruments representing securities
bought, sold or issued, or loans made on the Closing Date, including the Senior
Unsecured Notes; (b) the indentures or other documents pursuant to which such
securities bought, sold or issued on the Closing Date, or any such certificates,
notes, debentures or other instruments are issued or to be issued, including the
Senior Unsecured Note Documents; (c) each document governing the issuance of, or
setting forth the terms of, such securities, certificates, notes, debentures or
other instruments; (d) any equityholders, registration or intercreditor
agreement among or between the holders of such equity interests, certificates,
notes, debentures or other instruments; (e) the CBI Senior Subordinated Notes
and the CBI Indenture; and (f) all other instruments, documents and agreements
executed in connection with the foregoing; but in each case excluding all Loan
Documents.
"CAPITALIZED LEASE LIABILITIES" means, with respect to any Person, all
monetary obligations of such Person and its Subsidiaries under any leasing or
similar arrangement which have been (or, in accordance with GAAP, should be)
classified as capitalized leases, and for purposes of each Loan Document the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a premium or a penalty.
"CASH COLLATERALIZE" means, with respect to a Letter of Credit, the deposit
of immediately available funds into a cash collateral account maintained with
(or on behalf of) the Administrative Agent on terms satisfactory to the
Administrative Agent in an amount equal to the Stated Amount of such Letter of
Credit.
"CASH EQUIVALENT INVESTMENTS" means: (i) marketable direct obligations
issued or unconditionally guarantied by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one (1) year from the date of acquisition
thereof; (ii) commercial paper maturing no more than one (1) year from the date
issued and, at the time of acquisition, having a rating of at least A-1 from
Standard & Poor's Ratings Group or at least P-1 from Moody's Investors Service,
Inc.; (iii) certificates of deposit or bankers' acceptances maturing within one
(1) year from the date of issuance thereof issued by, or overnight reverse
repurchase agreements from, any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia having
combined capital and surplus of not less than $500,000,000; (iv) time deposits
maturing no more than thirty (30) days from the date of creation thereof with
commercial banks having membership in the Federal Deposit Insurance Corporation
in amounts not exceeding the lesser of $100,000 or the maximum amount of
insurance applicable to the aggregate amount of a Borrower's deposits at such
institution; and (v) deposits or investments in mutual or similar funds offered
or sponsored by brokerage or other companies having membership in the
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Securities Investor Protection Corporation in amounts not exceeding the lesser
of $100,000 or the maximum amount of insurance applicable to the aggregate
amount of a Borrower's deposits at such institution.
"CBI" is defined in the FIRST RECITAL.
"CBI AFFILIATED GROUP" is defined in SECTION 8.1.15.
"CBI INDENTURE" means the indenture dated December 16, 1996, as amended by
the first supplemental indenture thereto, dated as of July 21, 2000, and as
further amended or modified in accordance with SECTION 7.2.12.
"CBI PREFERRED STOCK" means the Series A Preferred Stock, par value $0.01
per share, of CBI.
"CBI SENIOR SUBORDINATED NOTES" means the 11% Senior Subordinated Notes Due
2007 of CBI in the original principal amount of $90,000,000, issued pursuant to
the CBI Indenture.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHI" means Castle Harlan, Inc., a Delaware corporation.
"CHP" means (a) CHP II, CHP III and any Person controlling, controlled by,
or under common control with, and any account controlled or managed by or under
common control or management with, CHP II or CHP III and (b) CHI and employees,
management and directors of, and Persons owning accounts managed by, any of the
foregoing and their respective Affiliates.
"CHP II" means Castle Harlan Partners II, L.P., a Delaware limited
partnership.
"CHP III" means Castle Harlan Partners III, L.P., a Delaware limited
partnership.
"CHANGE IN CONTROL" means
(a) at any time the failure of CHP to beneficially own and control, directly or
indirectly through voting trusts or otherwise, at least (i) 51% of the
voting interests of the Voting Securities of the Borrower and (ii) 51% of
the Capital Securities of the Borrower, such Capital Securities in each
case to be held free and clear of all Liens; or
(b) during any period of 24 consecutive months, individuals who at the
beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election to such Board or
whose nomination for election by the stockholders of the Borrower was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for
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election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office; or
(c) the occurrence of any "Change of Control" (or similar term) under (and as
defined in) any Senior Unsecured Note Document or any Sub Debt Document.
"CLOSING DATE" means the date of the initial Credit Extension hereunder,
but in no event shall such date be later than February 21, 2002.
"CODE" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"COLLATERAL" means, collectively: (a) all Capital Securities and other
property pledged pursuant to the Security Documents; (b) all "Collateral" as
defined in the Security Documents; (c) all real property mortgaged pursuant to
the Security Documents; and (d) any property or interest provided in addition to
or in substitution for any of the foregoing.
"COMMON STOCK" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Closing
Date or issued after the Closing Date, and includes all series and classes of
such common stock.
"COMMITMENT" means, as the context may require, the Revolving Loan
Commitment, Letter of Credit Commitment or Swing Line Loan Commitment.
"COMMITMENT AMOUNT" means, as the context may require, the Revolving Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line Loan
Commitment Amount.
"COMMITMENT TERMINATION DATE" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Revolving Loan Commitment Amount is terminated in
full or reduced to zero pursuant to the terms of this Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding CLAUSES (b) or (c),
the Commitments shall terminate automatically and without any further action.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default with respect to the
Borrower described in CLAUSES (a) through (d) of SECTION 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
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(i) the declaration of all or any portion of the Loans to be due
and payable pursuant to SECTION 8.3, or
(ii) the giving of notice by the Administrative Agent, acting at
the direction of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed by
an Authorized Officer of the Borrower, substantially in the form of EXHIBIT E
hereto, together with such changes thereto as the Administrative Agent may from
time to time request for the purpose of monitoring the Borrower's compliance
with the financial covenants contained herein.
"CONTINGENT LIABILITY", as applied to any Person, means any direct or
indirect liability of that Person: (i) with respect to any indebtedness, lease,
dividend or other obligation of another Person if the purpose or intent of the
Person incurring such liability, or the effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part) against loss
with respect thereto; (ii) with respect to any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (iii) under any forward contracts, future contracts,
foreign exchange contract, currency swap or option agreement, interest rate swap
or option agreement or other similar agreement or arrangement (x) designed to
alter the risks of that Person arising from fluctuations in currency values,
commodity values or interest rates or (y) the value of which is dependent upon
interest rates, currency exchange rates, commodities or other indices; (iv) to
make take-or-pay or similar payments if required regardless of nonperformance by
any other party or parties to an agreement; or (v) pursuant to any agreement to
purchase, repurchase or otherwise acquire any obligation of another Person or
any property constituting security therefor, to provide funds for the payment or
discharge of such obligation or to maintain the solvency, financial condition or
any balance sheet item or level of income of another. For purposes of this
Agreement, (a) the amount of any obligation described in CLAUSE (i), (ii), (iv)
or (v) shall be equal to the lower of (x) the stated or determinable amount of
the primary obligation in respect of which such contingent obligation is made,
and (y) the maximum amount for which such Person may be liable pursuant to the
terms of the agreement embodying such contingent obligation unless such primary
obligation and the maximum amount for which such Person may be liable are not
stated or determinable, in which case the amount of such contingent obligation
shall be such Person's reasonably anticipated maximum liability in respect
thereof as determined by such Person in good faith, and (b) the amount of any
obligation described in CLAUSE (iii) shall be the amounts, including any
termination payments, that would be required to be paid to a counterparty upon
early termination (in accordance with customary industry standards) rather than
any notional amount with regard to which payments may be calculated.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTRACTUAL OBLIGATIONS" as applied to any Person, means any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or
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by which it or any of its properties is bound or to which it or any of its
properties is subject, including the Related Transactions Documents.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"COPYRIGHT SECURITY AGREEMENT" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to
any Pledge and Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by an Issuer.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DELIVERY DATE" is defined in the definition of "Applicable Margin".
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Required Lenders.
"DISPOSITION" (or similar words such as "DISPOSE") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or its Subsidiaries' assets (including accounts receivable and
Capital Securities of Subsidiaries) to any other Person in a single transaction
or series of transactions.
"DISQUALIFIED CAPITAL SECURITIES" means that portion of any Capital
Securities which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable, in each case for cash or property
(other than Capital Securities) at the sole option of the holder thereof on or
prior to the Stated Maturity Date.
"DOCUMENTATION AGENT" is defined in the PREAMBLE.
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"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means the office of a Lender designated as its "Domestic
Office" on SCHEDULE II hereto or in a Lender Assignment Agreement, or such other
office within the United States as may be designated from time to time by notice
from such Lender to the Administrative Agent and the Borrower.
"EBITDA" means:
(d) net income (or loss) for the period of the Borrower and its
Subsidiaries, but excluding: (i) the income (or loss) of any Person (other
than Subsidiaries of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest unless received by the Borrower or
its Subsidiaries in a cash distribution; (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or
is merged into or consolidated with the Borrower; and (iii) the aggregate
amount of interest income earned by the Borrower and its Subsidiaries;
PLUS
(e) any provision for (or less any benefit from) income and franchise
taxes included in the determination of net income;
(f) interest expense (including that attributable to capital leases and all
commissions, discounts and others fees and charges with respect to
letters of credit) deducted in the determination of net income;
(g) amortization and depreciation deducted in the determination of net income;
(h) losses (or MINUS gains) from Asset Dispositions or other non-cash items
included in the determination of net income (excluding sales, expenses
or losses related to current assets);
(i) transaction expenses included in the determination (for the relevant
period) of net income of (A) the Related Transactions consummated on
or around the Closing Date in an amount not to exceed $10,000,000 and
(B) the Existing Credit Agreement (including the transactions, such as
the acquisition of ECI, contemplated therein), in an amount not to
exceed $7,000,000;
(j) any management fee (contemplated by CLAUSE (a) of SECTION 7.2.13 of the
Credit Agreement) actually paid in cash to the extent deducted in the
determination of net income;
(k) to the extent deducted in determining net income, an amount not to exceed
$3,000,000 reflecting the cost of unwinding a portion of the interest
rate swaps existing as of the Closing Date; and
(l) other non-cash items deducted (or less other non-cash items added) in the
determination of net income;
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LESS
(m) extraordinary gains net of related tax effects included in the
determination of net income.
"ECI" is defined in the FIRST RECITAL.
"EFFECTIVE DATE" means the date this Agreement becomes effective pursuant
to SECTION 10.8.
"ELIGIBLE ACCOUNT" means, with respect to the Borrower and any of its U.S.
wholly-owned Subsidiaries, at the time of any determination thereof, any Account
for which none of the following criteria apply in the reasonable determination
of the Administrative Agent:
(n) "Balfour Representative" Accounts which remain unpaid for more
than 180 days after the due date specified in the original invoice therefor
(or for more than 90 days after the invoice date thereof, if no due date is
specified);
(o) Accounts (other than "Balfour Representative" Accounts) which
remain unpaid for more than 120 days after the due date specified in the
original invoice therefor (or for more than 90 days after the invoice date
if no due date is specified);
(p) Accounts in excess of $100,000 due from a customer whose principal
place of business is located outside of the United States, or such Accounts
in excess of an aggregate of $500,000, except for such Accounts that are
backed by a letter of credit (provided that such letter of credit was
issued or confirmed by a bank that is organized under the laws of the
United States of America or a State thereof and has capital and surplus in
excess of $500,000,000);
(q) Accounts with respect to which the customer is the United States
of America or any department, agency, or instrumentality thereof, except
for those Accounts for which the applicable Obligor has complied with the
Federal Assignment of Claims Act (Ref. 31 U.S.C. Section 3727) and other
Accounts that do not in the aggregate exceed $1,500,000 at any time
outstanding;
(r) Accounts with respect to which the customer is an Affiliate of the
Borrower or a director, officer, agent, stockholder, or employee of the
Borrower or any of its Affiliates (this exclusion shall not include (x)
Accounts with respect to which the customer is a commissioned sales
representative of CBI, Taylor General Partner, Taylor or any Subsidiary of
Taylor or CBI, and (y) Accounts of less than $250,000 in the aggregate with
respect to which the customer is a portfolio company of CHP);
(s) Accounts with respect to which there is any unresolved dispute
with the respective customer but only to the extent of such dispute;
(t) Accounts with respect to which the Administrative Agent does not
have a valid, first priority and fully perfected security interest and
Accounts subject to any Lien except those in favor of the Administrative
Agent; including Accounts evidenced by an
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instrument (as defined in Article 9 of the UCC) not in the possession of
the Administrative Agent;
(u) Accounts with respect to which the customer is the subject of any
bankruptcy or other insolvency proceedings;
(v) Accounts due from a customer to the extent that such Accounts
exceed in the aggregate an amount equal to 10% (or 20% with respect to
Accounts due from Wal-Mart Stores, Inc.) of the aggregate of all Accounts
at such date;
(w) Accounts with respect to which the customer's obligation to pay is
conditional or subject to a repurchase obligation or right to return,
including bill and hold sales, guarantied sales, sale or return
transactions, sales on approval or consignment sales (other than Accounts
of Taylor and CBI to the extent such Accounts are on terms consistent with
past practices of Taylor and CBI, respectively); or
(x) Accounts which do not constitute the legally valid and binding
obligation of the customer to pay the same.
"ELIGIBLE INVENTORY" means, with respect to the Borrower and any of its
U.S. wholly-owned Subsidiaries, at the time of any determination thereof, any
Inventory located in the United States arising in the ordinary course of
business and for which none of the following criteria apply in the reasonable
determination of the Administrative Agent, and valued at the lower of cost or
market (including adequate reserves for obsolete, slow moving or excess
quantities), on a first-in, first-out basis:
(y) Inventory with respect to which the Administrative Agent does not
have a valid, first priority and fully perfected security interest;
(z) raw material Inventory of Gold content;
(aa) Gold content included in finished goods Inventory and work in
process Inventory;
(bb) Inventory with respect to which there exists any Lien in favor of
any Person other than the Administrative Agent under a Loan Document;
(cc) Inventory located at a consignee, bailee, warehouseman, refiner,
agent, processor or other third party location for which the Administrative
Agent has not received an access agreement in form and substance
satisfactory to the Administrative Agent; or
(dd) Inventory produced in violation the Fair Labor Standards Act and
subject to the so-called "hot goods" provisions contained in Title 25
U.S.C. 215(a)(i).
"ENVIRONMENTAL LAWS" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules, regulations and published guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations promulgated thereunder.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXEMPTION CERTIFICATE" is defined in CLAUSE (e) of SECTION 4.6.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING BORROWERS" is defined in the FIRST RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING PROMISSORY NOTES" is defined in the FIRST RECITAL.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FEE LETTER" means the confidential letter, dated December 17, 2001,
between Scotia Capital and the Borrower.
"FILING AGENT" is defined in SECTION 5.1.9.
"FILING STATEMENTS" is defined in SECTION 5.1.9.
"FISCAL QUARTER" means a quarter ending on the Saturday closest to the last
day of November, February, May or August.
"FISCAL YEAR" means any period of twelve consecutive calendar months ending
on the final Saturday of August in each calendar year; references to a Fiscal
Year with a number corresponding to any calendar year (E.G., the "2002 Fiscal
Year") refer to the Fiscal Year ending on the Saturday closest to August 31 of
such calendar year.
"FIXED CHARGE COVERAGE RATIO" means, as of the close of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and the
three immediately preceding Fiscal Quarters of the following amounts with
respect to all such Fiscal Quarters:
(ee) EBITDA MINUS the sum of (i) Unfinanced Capital Expenditures, (ii)
any management fee (contemplated by CLAUSE (a) of SECTION 7.2.13) actually
paid in cash to
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the extent deducted in the determination of net income, and (iii) other
capitalized costs (defined as the gross amount capitalized, for any period,
as long term assets (net of cash received in respect of long term assets),
including the purchase price of Permitted Acquisitions to the extent paid
in cash from sources other than a Borrowing, other than (x) Capital
Expenditures and (y) fees and expenses capitalized with respect to the
Refinancing;
TO
(ff) Fixed Charges.
"FIXED CHARGES" means (a) Interest Expense PLUS (b)(i) any provision
for (or benefit from) income or franchise taxes included in the determination of
net income; (ii) increases (or PLUS decreases) in short-term and long-term
deferred tax assets; (iii) decreases (or MINUS increases) in short-term and
long-term deferred tax liabilities; (iv) scheduled payments of principal with
respect to all Indebtedness (including the principal portion of scheduled
payments of Capitalized Lease Liabilities); and (v) Restricted Junior Payments
made in cash (other than (i) Restricted Junior Payments which are made solely
with the proceeds of a Qualified SLB or (ii) with the proceeds of Additional
Equity).
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a U.S. Subsidiary.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect from time to time.
"GOLD" means gold in whatever form (whether bullion, granule, alloys or
otherwise).
"GOLD CONSIGNMENT AGREEMENT" means that certain Letter Agreement and Fee
Consignment for Purchase of Gold, dated as of July 27, 2000, by and between CBI
and The Bank of Nova Scotia, as amended or otherwise modified from time to time
prior to the Effective Date.
"GOVERNMENTAL AUTHORITY" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other Person exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
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(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, radioactive, toxic or
otherwise regulated chemical, material or substance (including any
petroleum product) within the meaning of any Environmental Law, as amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under currency or commodity exchange agreements, interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity values.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.
"IMPERMISSIBLE QUALIFICATION" means any qualification or exception to the
opinion or certification of any independent public accountant as to any
financial statement of the Borrower
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrower to be in Default.
"INCLUDING" and "INCLUDE" means including without limiting the generality
of any description preceding such term, and, for purposes of each Loan Document,
the parties hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"INDEBTEDNESS" of any Person means:
(gg) all obligations of such Person for borrowed money or advances and
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments;
(hh) all obligations, contingent or otherwise, relative to the face amount of
all letters of credit, whether or not drawn, and banker's acceptances
issued for the account of such Person;
(ii) all Capitalized Lease Liabilities of such Person;
(jj) for purposes of SECTION 8.1.5 only, all other items which, in accordance
with GAAP, would be included as liabilities on the balance sheet of such
Person as of the date at which Indebtedness is to be determined;
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(kk) net Hedging Obligations of such Person;
(ll) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of property
or services (excluding trade accounts payable in the ordinary course of
business which are not overdue for a period of more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate
reserves in conformity with GAAP have been established on the books of
such Person), and indebtedness secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on property owned or being acquired by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(mm) obligations arising under Synthetic Leases; and
(nn) all Contingent Liabilities of such Person in respect of any of the
foregoing.
The Indebtedness of any Person shall include the Indebtedness of any other
Person (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such Person, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INDENTURE" means the Indenture, dated as of February 20, 2002, to the
Senior Unsecured Notes, as amended, supplemented, amended and restated or
otherwise modified in accordance with SECTION 7.2.12.
"INTERCO SUBORDINATION AGREEMENT" means the Subordination Agreement,
substantially in the form of EXHIBIT I hereto, executed and delivered by two or
more Obligors pursuant to the terms of this Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, substantially
in the form of EXHIBIT K hereto, by and among the Administrative Agent and
Scotia Capital and acknowledged by the Borrower, dated as of February 20, 2002
(as amended, supplemented, amended and restated or otherwise modified from time
to time).
"INTEREST COVERAGE RATIO" means as of the close of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and the three
immediately preceding Fiscal Quarters of (a) EBITDA for all such Fiscal Quarters
to (b) Interest Expense for all such Fiscal Quarters.
"INTEREST EXPENSE" means:
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(oo) interest expense, net of interest income, included in the
determination of net income (but including that attributable to capital
leases, all commissions, discounts and other fees and charges with respect
to letters of credit);
MINUS
(pp) amortization of capitalized fees and expenses incurred with respect to the
Refinancing included in interest expense;
MINUS
(qq) interest paid in kind and included in interest expense.
"INTEREST PERIOD" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTIONS 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to SECTIONS 2.3 or 2.4;
PROVIDED, HOWEVER, that
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on more
than five different dates;
(b) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding such numerically corresponding day); and
(c) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"INVENTORY" means any "inventory" (as that term is defined in Section
9-102(a)(48)(B) and (a)(48)(D) of the UCC) of the Borrower or any of its wholly
owned U.S. Subsidiaries.
"INVESTMENT" means (i) any direct or indirect purchase or other acquisition
by the Borrower or any of its Subsidiaries of any beneficial interest in,
including Capital Securities of, or ownership interest in, any other Person; and
(ii) any direct or indirect loan, advance or capital contribution by the
Borrower or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales or provision of services to that other Person
in the ordinary course of business. The amount of any Investment shall be the
original principal or capital amount thereof less all returns of principal or
equity thereon and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property at the time of such
Investment.
"ISP RULES" is defined in SECTION 10.9.
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"ISSUANCE REQUEST" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
EXHIBIT B-2 hereto.
"ISSUER" means Scotia Capital in its capacity as Issuer of the Letters of
Credit. At the request of Scotia Capital and with the Borrower's consent (not to
be unreasonably withheld), another Lender or an Affiliate of Scotia Capital may
issue one or more Letters of Credit hereunder.
"LENDER ASSIGNMENT AGREEMENT" means an assignment agreement substantially
in the form of EXHIBIT J hereto.
"LENDERS" is defined in the PREAMBLE.
"LENDER'S ENVIRONMENTAL LIABILITY" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and experts' fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
claim or proceeding) which may at any time be imposed upon, incurred by or
asserted or awarded against the Administrative Agent, any Lender or any Issuer
or any of such Person's Affiliates, shareholders, directors, officers,
employees, and agents in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from the Borrower's or any of its Subsidiaries' or any
of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in SECTION 6.10;
(c) any violation or claim of violation by the Borrower or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the recovery
of any costs for the cleanup, release or threatened release of Hazardous
Material by the Borrower or any of its Subsidiaries, or in connection with
any property owned or formerly owned by the Borrower or any of its
Subsidiaries.
"LETTER OF CREDIT" is defined in SECTION 2.1.2.
"LETTER OF CREDIT COMMITMENT" means each Issuer's obligation to issue
Letters of Credit pursuant to SECTION 2.1.2.
"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum amount
of $10,000,000, as such amount may be permanently reduced from time to time
pursuant to SECTION 2.2.
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"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to the
sum of (i) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit, and (ii) the then aggregate amount of
all unpaid and outstanding Reimbursement Obligations.
"LEVERAGE RATIO" means, as of the last day of any Fiscal Quarter, the ratio
of
(a) Total Debt outstanding on the last day of such Fiscal Quarter
TO
(b) EBITDA computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market at or about 11:00 a.m. London, England
time two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and in an amount
approximately equal to the amount of the Administrative Agent's LIBO Rate Loan
and for a period approximately equal to such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO RATE
LIBO Rate = ----------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
"LIBOR OFFICE" means the office of a Lender designated as its "LIBOR
Office" on SCHEDULE II hereto or in a Lender Assignment Agreement, or such other
office designated from time to time by notice from such Lender to the Borrower
and the Administrative Agent, whether or not outside the United States, which
shall be making or maintaining the LIBO Rate Loans of such Lender.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and
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taking into account any transitional adjustments or other scheduled changes in
reserve requirements) specified under regulations issued from time to time by
the F.R.S. Board and then applicable to assets or liabilities consisting of or
including "Eurocurrency Liabilities", as currently defined in Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"LOAN DOCUMENTS" means, collectively, (i) this Agreement, the Notes, the
Letters of Credit, each Rate Protection Agreement, the Fee Letter, each
agreement pursuant to which the Administrative Agent is granted a Lien to secure
the Obligations and each other agreement, certificate, document or instrument
delivered in connection with any Loan Document, whether or not specifically
mentioned herein or therein and (ii) for purposes of any agreement which
provides a Lien in favor of the Secured Parties, the Gold Consignment Agreement.
"LOANS" means, as the context may require, a Revolving Loan or a Swing Line
Loan of any type.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect upon the
business, operations, properties, assets or financial condition of the Borrower
and its Subsidiaries taken as a whole, or (b) the impairment of the ability of
the Borrower and its Subsidiaries taken as a whole to perform their material
obligations under the Loan Documents or of the Administrative Agent or any
Lender to enforce any Loan Document or collect the Obligations. In determining
whether any individual event would result in a Material Adverse Effect,
notwithstanding that such event does not of itself have such effect, a Material
Adverse Effect shall be deemed to have occurred if the cumulative effect of such
event and all other then existing events would result in a Material Adverse
Effect.
"MEXICAN SUBSIDIARY" means Pulidos de Juarez, S.A. de C.V., a corporation
organized under the laws of Mexico.
"MONTHLY PAYMENT DATE" means the first day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means each deed of trust executed and delivered by each of CBI,
with respect to its real property located in Travis County, Texas as of the
Closing Date, and Taylor General Partner, with respect to its real property
located in Dallas County, Texas as of the Closing Date, in each case in favor of
the Administrative Agent for the benefit of the Secured Parties pursuant to the
requirements of this Agreement, in substantially the form of EXHIBIT H hereto,
under which a Lien is granted on the real property and fixtures described
therein, as amended, supplemented, amended and restated or otherwise modified
from time to time.
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"NET ASSET VALUE" means, at any time of any determination, (i) with respect
to Eligible Accounts, 85% of an amount equal to (x) the book value of all
Eligible Accounts as reflected on the books of the Borrower and its Subsidiaries
in accordance with GAAP, net of (y) all credits, discounts and allowances (and
net of all unissued credits in the form of competitive allowances or otherwise)
in respect of such Eligible Accounts and (ii) with respect to Eligible
Inventory, an amount equal to the sum of (x) 50%, with respect to Nonprecious
Inventory and (y) 70%, with respect to Precious Metals/Stones Inventory, in each
case of the net book value (determined on a standard cost basis) of all such
Eligible Inventory as reflected on the books of the Borrower and the
Subsidiaries as at such time, valued in accordance with GAAP.
"NONPRECIOUS INVENTORY" means Eligible Inventory LESS Precious
Metals/Stones Inventory.
"NON-EXCLUDED TAXES" means any Taxes other than net income, branch, doing
business or franchise taxes imposed with respect to any Secured Party by any
Governmental Authority as a result of a present or former connection between
such Secured Party and the relevant taxing jurisdiction, other than a connection
arising solely from such Secured Party having executed, delivered, or performed
its obligations under, or received a payment under, or enforced this Agreement
or any other Loan Document.
"NON-U.S. LENDER" or "NON-U.S. SECURED PARTY" means any Lender or Secured
Party, as the case may be, that is not a "United States person", as defined
under Section 7701(a)(30) of the Code.
"NOTE" means, as the context may require, a Revolving Note or a Swing Line
Note.
"OBLIGATIONS" means, collectively, (i) all obligations (monetary or
otherwise, whether absolute or contingent, matured or unmatured) of the Borrower
and each other Obligor arising under or in connection with a Loan Document,
including Reimbursement Obligations and the principal of and premium, if any,
and interest (including interest accruing during the pendency of any proceeding
of the type described in SECTION 8.1.9, whether or not allowed in such
proceeding) on the Loans, and (ii) for purposes of any Security Document which
provides a Lien in favor of the Secured Parties, all amounts owing to Scotia
Capital pursuant to the Gold Consignment Agreement.
"OBLIGOR" means, as the context may require, the Borrower and each of its
Subsidiaries.
"ORGANIC DOCUMENT" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement, operating
agreement and all shareholder agreements, voting trusts and similar arrangements
applicable to any of such Obligor's partnership interests, limited liability
company interests or authorized shares of Capital Securities.
"OTHER TAXES" means any and all stamp, documentary or similar Taxes, or any
other excise or property Taxes or similar levies that arise on account of any
payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
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"PARTICIPANT" is defined in SECTION 10.11.2.
"PATENT SECURITY AGREEMENT" means any Patent Security Agreement executed
and delivered by any Obligor in substantially the form of Exhibit A to any
Pledge and Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is, along with the Borrower, a member of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on SCHEDULE II hereto
under the Revolving Loan Commitment column or set forth in a Lender Assignment
Agreement under the Revolving Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreements executed by
such Lender and its Assignee Lender and delivered pursuant to SECTION 10.11.1. A
Lender shall not have any Revolving Loan Commitment if its percentage under the
Revolving Loan Commitment column is zero.
"PERMITTED ACQUISITION" means an acquisition (whether pursuant to an
acquisition of Capital Securities, assets or otherwise) by the Borrower or any
Subsidiary from any Person of a business in which the following conditions are
satisfied or otherwise consented to by the Required Lenders:
(rr) the Borrower has demonstrated in writing to the reasonable
satisfaction of the Administrative Agent that the business to be acquired
has had positive EBITDA, after giving effect to Pro Forma Cost Reductions,
for the preceding 12 months for which a calculation of EBITDA is then
available;
(ss) the Borrower has demonstrated in writing to the reasonable satisfaction of
the Administrative Agent that on a PRO FORMA basis, after giving effect
to such acquisition, the sum of (x) the unused portion of the Revolving
Loan Commitment Amount (net of Letter of Credit Outstandings) available
as of the date of such acquisition (including immediately following such
acquisition) and (y) the amount of Cash Equivalent Investments then owned
by the Borrower, shall at all times during the 12 months following such
acquisition equal or exceed $5,000,000;
(tt) substantially all of the assets so acquired are located in the United
States or, if such acquisition is structured as a purchase of Capital
Securities, the Person so acquired is organized under the laws of a state
in the United States or under the laws of the District
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of Columbia, and substantially all of the assets owned by such Person are
located in the United States;
(uu) the Borrower has delivered to the Administrative Agent not less than ten
(10) Business Days prior to the consummation of the acquisition an
acquisition summary providing a reasonably detailed description of the
Person whose Capital Securities or assets are proposed to be acquired and
the terms and conditions of the proposed purchase, along with such due
diligence information (including, without limitation, due diligence
information regarding any environmental matters) reasonably requested by,
and in form and content reasonably acceptable to, the Administrative
Agent;
(vv) the Borrower has delivered to the Administrative Agent all legal
documentation pertaining to such acquisition, which documentation shall
be in form and substance reasonably acceptable to the Administrative
Agent;
(ww) immediately before and after giving effect to such acquisition no Default
shall have occurred and be continuing or would result therefrom
(including under SECTION 7.2.1);
(g) the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate for the period of four full Fiscal Quarters
immediately preceding such acquisition (prepared in good faith and in a
manner and using such methodology which is consistent with the most recent
financial statements delivered pursuant to SECTION 7.1.1) giving PRO FORMA
effect to the consummation of such acquisition and evidencing compliance
with the covenants set forth in SECTION 7.2.4; and
(h) the Total Consideration to be paid for such acquisition does not
exceed $10,000,000, and together with the Total Consideration paid with
respect to all other Permitted Acquisitions does not exceed $25,000,000
over the term of this Agreement.
"PERMITTED ENCUMBRANCES" is defined in SECTION 7.2.3.
"PERSON" means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization,
Governmental Authority or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
"PLEDGE AND SECURITY AGREEMENT" means, as the context may require, the
Borrower Pledge and Security Agreement or the Subsidiary Pledge and Security
Agreement.
"PLEDGED SUBSIDIARY" means each Subsidiary in respect of which the
Administrative Agent has been granted a security interest in or a pledge of (i)
any of the Capital Securities of such Subsidiary or (ii) any intercompany notes
of such Subsidiary owing to the Borrower or another Subsidiary.
"PRECIOUS METALS/STONES INVENTORY" means Eligible Inventory consisting of
precious stones and precious metals.
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"PREFERRED STOCK" of any Person means any Capital Securities of such Person
that has preferential rights to any other Capital Securities of such Person with
respect to dividends or redemptions or upon liquidation.
"PRO FORMA COST REDUCTION" means, with respect to any Permitted
Acquisition, the estimated amount of cost savings attributable to operational
efficiencies expected to be created by the Borrower with respect to the business
to be acquired and the business of the Borrower and its Subsidiaries, as
calculated by the Borrower and acceptable to the Administrative Agent in its
discretion.
"PROJECTIONS" means forecasted (a) consolidated balance sheets, cash flow
statements, and capitalization statements; and (b) consolidated and
consolidating profit and loss statements, all prepared with the Borrower's and
its Subsidiaries' respective historical financial statements and with the
financial statements required to be delivered pursuant to CLAUSE (a) and CLAUSE
(b) of SECTION 7.1.1, together with appropriate supporting details and a
statement of underlying assumptions.
"QUALIFIED SLB" means the Sale and Leaseback Transaction by the Borrower or
its Subsidiaries involving either their facilities located in Travis County,
Texas as of the Closing Date or their facilities located in Dallas County, Texas
as of the Closing Date.
"QUARTERLY PAYMENT DATE" means the last day of March, June, September and
December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"RATE PROTECTION AGREEMENT" means, collectively, any precious metal hedge
agreement, foreign exchange agreement, commodity exchange agreement, interest
rate swap, cap, collar or (in each case) similar agreement entered into by the
Borrower or any of its Subsidiaries under which the counterparty of such
agreement is (or at the time such agreement was entered into, was) a Lender or
an Affiliate of a Lender.
"REFINANCING" is defined in the FIRST RECITAL.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (b) of SECTION 2.3.2.
"REGISTER" is defined in CLAUSE (b) of SECTION 2.7.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RELATED TRANSACTIONS" means the execution and delivery of the Related
Transactions Documents on the Closing Date, the funding of all Credit Extensions
(if any) on the Closing Date, the issuance of the Senior Unsecured Notes, and
the payment of all fees, costs and expenses associated with all of the
foregoing.
"RELATED TRANSACTIONS DOCUMENTS" means the Loan Documents and the
Capitalization Documents.
"RELEASE" means a "RELEASE", as such term is defined in CERCLA.
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"REPLACEMENT LENDER" is defined in CLAUSE (f) of SECTION 10.11.1.
"REQUIRED LENDERS" means, at any time, (i) Lenders holding at least 66 2/3%
of the Total Exposure Amount (if there are more than two Lenders on such date of
determination) and (ii) Lenders holding 100% of the Total Exposure Amount (if
there are two or fewer Lenders on such date of determination).
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as amended.
"RESTRICTED JUNIOR PAYMENT" means: (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Securities,
or ownership interest in, the Borrower or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of that class
of Capital Securities or other equity security to the holders of that class;
(ii) any redemption, conversion, exchange, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of Capital Securities, or ownership interest in, the
Borrower or any of its Subsidiaries now or hereafter outstanding; (iii) any
payment or prepayment of interest on, principal of, premium, if any, redemption,
conversion, exchange, purchase, retirement, defeasance, sinking fund or similar
payment with respect to any Subordinated Debt, Seller Note Indebtedness, or the
Senior Unsecured Notes; and (iv) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Securities, or ownership interest in the Borrower
or any of its Subsidiaries now or hereafter outstanding.
"REVOLVING LOAN" is defined in SECTION 2.1.1.
"REVOLVING LOAN COMMITMENT" means, relative to any Lender, such Lender's
obligation (if any) to make Revolving Loans pursuant to CLAUSE (a) of SECTION
2.1.1.
"REVOLVING LOAN COMMITMENT AMOUNT" means, on any date, $40,000,000, as such
amount may be reduced from time to time pursuant to SECTION 2.2.
"REVOLVING NOTE" means a promissory note of the Borrower payable to any
Lender, in the form of EXHIBIT A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Revolving Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Rating Services, a division of McGraw-Hill,
Inc.
"SALE AND LEASEBACK TRANSACTION" means any agreement or arrangement
providing for the sale or transfer by any Person of any real property and any
improvements thereon (now owned or hereafter acquired) to another Person and the
subsequent lease or rental of such real property or improvements or other
similar property from such other Person.
"SCOTIA CAPITAL" is defined in the PREAMBLE.
"SEC" means the Securities and Exchange Commission.
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"SECURED DEBT" means, on any date, the amount of all Total Debt secured by
a Lien on any assets of the Borrower or any of its Subsidiaries.
"SECURED LEVERAGE RATIO" means, as of any date of determination, the ratio
of
(a) all Secured Debt outstanding on such date (including after giving
effect to any Credit Extensions to be made)
TO
(b) EBITDA computed for the period consisting of the four immediately
preceding Fiscal Quarters for which financial information has been
delivered to the Lenders pursuant to SECTION 7.1.1.
"SECURED PARTIES" means, collectively, the Lenders, the Issuers, the
Administrative Agent, each counterparty to a Rate Protection Agreement that is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate thereof, and (in each case) each of their respective successors,
transferees and assigns.
"SECURITY DOCUMENTS" means all instruments, documents and agreements
executed by or on behalf of any Person to guaranty or provide collateral
security with respect to the Obligations including any security agreement or
pledge agreement, any guaranty of the Obligations, any mortgage or deed of
trust, and all instruments, documents and agreements executed pursuant to the
terms of the foregoing.
"SELLER NOTE INDEBTEDNESS" is defined in CLAUSE (j) of SECTION 7.2.2.
"SELLER NOTES" means the unsecured subordinated notes delivered by a
Subsidiary of the Borrower in respect of Seller Note Indebtedness.
"SENIOR UNSECURED NOTE DOCUMENTS" means collectively, the indentures
(including the Indenture), note purchase agreements, promissory notes,
guarantees, and other instruments and agreements evidencing the terms of the
Senior Unsecured Notes, as amended, supplemented, amended and restated or
otherwise modified in accordance with SECTION 7.2.12.
"SENIOR UNSECURED NOTES" is defined in the SECOND RECITAL.
"STATED AMOUNT" means, on any date and with respect to a particular Letter
of Credit, the total amount then available to be drawn under such Letter of
Credit.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY DATE" means February 20, 2006.
"SUBJECT TRANSACTION" is defined in SECTION 1.4.
"SUB DEBT DOCUMENTS" means, collectively, loan agreements, indentures
(including the CBI Indenture), note purchase agreements, promissory notes,
guarantees, and other instruments
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and agreements evidencing the terms of Subordinated Debt, as amended,
supplemented, amended and restated or otherwise modified in accordance with
SECTION 7.2.12.
"SUBORDINATED DEBT" means (i) the CBI Senior Subordinated Notes and (ii) if
applicable, any other unsecured Indebtedness of the Borrower subordinated in
right of payment to the Obligations pursuant to documentation containing
redemption and other prepayment events, maturities, amortization schedules,
covenants, events of default, remedies, acceleration rights, subordination
provisions and other material terms satisfactory to the Required Lenders.
"SUBORDINATION PROVISIONS" is defined in SECTION 8.1.11.
"SUBSIDIARY" means, with respect to any Person, any other Person of which
more than 50% of the outstanding Voting Securities of such other Person
(irrespective of whether at the time Capital Securities of any other class or
classes of such other Person shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of
such Person, or by one or more other Subsidiaries of such Person. Unless the
context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" means each U.S. Subsidiary existing on the Closing
Date in addition to each other U.S. Subsidiary that has executed and delivered
to the Administrative Agent a Subsidiary Guaranty in accordance with the terms
of this Agreement.
"SUBSIDIARY GUARANTY" means the subsidiary guaranty executed and
delivered by an Authorized Officer of each U.S. Subsidiary pursuant to the terms
of this Agreement, substantially in the form of EXHIBIT F hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"SUBSIDIARY PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement executed and delivered by each U.S. Subsidiary that in turn has any
Subsidiaries, substantially in the form of EXHIBIT G-2 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"SWAP AMOUNTS" is defined in the FIRST RECITAL.
"SWING LINE LENDER" means, subject to the terms of this Agreement, Scotia
Capital.
"SWING LINE LOAN" is defined in CLAUSE (b) of SECTION 2.1.1.
"SWING LINE LOAN COMMITMENT" is defined in CLAUSE (b) of SECTION 2.1.1.
"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $2,000,000, as such
amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note of the Borrower payable to the
Swing Line Lender, in the form of EXHIBIT A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also
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means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"SYNDICATION AGENT" is defined in the PREAMBLE.
"SYNTHETIC LEASE" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (a) that is not a capital lease in accordance
with GAAP and (b) in respect of which the lessee retains or obtains ownership of
the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"TAXES" means all income, stamp or other taxes, duties, levies, imposts,
charges, assessments, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
and all interest, penalties or similar liabilities with respect thereto.
"TAYLOR" is defined in the FIRST RECITAL.
"TAYLOR GENERAL PARTNER" is defined in the FIRST RECITAL.
"TAYLOR HOLDING CO." is defined in the FIRST RECITAL.
"TAYLOR SENIOR HOLDING CORP." means Taylor Senior Holding Corp., a Delaware
corporation.
"TERMINATION DATE" means the date on which all Obligations (other than
contingent indemnification obligations to the extent no unsatisfied claim giving
rise thereto has been asserted) have been paid in full in cash, all Letters of
Credit have been terminated or expired (or been Cash Collateralized), all Rate
Protection Agreements have been terminated and all Commitments shall have
terminated.
"TOTAL CONSIDERATION" means the total consideration paid with respect to
any acquisition, including (i) all payments made in cash and property, (ii) to
the extent not included in CLAUSE (i) above, the amount paid or to be paid
pursuant to noncompete agreements and consulting agreements, (iii) the amount of
debt and other liabilities assumed and/or incurred (including in the case of an
acquisition of Capital Securities, the amount of debt and other liabilities of
the Person to be acquired) and (iv) the amount of all transaction fees.
"TOTAL DEBT" means, on any date, the outstanding principal amount of all
Indebtedness of the Borrower and its Subsidiaries of the type referred to in
CLAUSE (a) (which, in the case of the Loans, shall be deemed to equal the
average daily amount of the Loans outstanding for the four Fiscal Quarters
ending on or immediately preceding the date of determination), CLAUSE (b)
(which, in the case of Letter of Credit Outstandings shall be deemed to equal
the average daily amount of Letter of Credit Outstandings for the four Fiscal
Quarters ending on or immediately preceding the date of determination), CLAUSE
(c) and CLAUSE (g), in each case of the definition of "Indebtedness" (exclusive
of intercompany Indebtedness between the Borrower and its Subsidiaries) and any
Contingent Liability in respect of any of the foregoing.
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"TOTAL EXPOSURE AMOUNT" means, on any date of determination (and without
duplication), the outstanding principal amount of all Loans, the aggregate
amount of all Letter of Credit Outstandings and the unfunded amount of the
Commitments.
"TRADEMARK SECURITY AGREEMENT" means any Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of Exhibit B to
any Pledge and Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York; PROVIDED, that if, with respect to any Filing Statement
or by reason of any provisions of law, the perfection or the effect of
perfection or non-perfection of the security interests granted to the
Administrative Agent pursuant to the applicable Loan Document is governed by the
Uniform Commercial Code as in effect in a jurisdiction of the United States
other than New York, then "UCC" means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions of
each Loan Document and any Filing Statement relating to such perfection or
effect of perfection or non-perfection.
"UNFINANCED CAPITAL EXPENDITURES" means that portion of Capital
Expenditures not financed under capital leases or other Indebtedness (other than
Loans).
"UNITED STATES" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. SUBSIDIARY" means any Subsidiary that is incorporated or organized
under the laws of the United States or a state thereof.
"UTILIZATION RATIO" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) the sum of (i) the average daily Stated Amount of Letters of
Credit plus (ii) the average daily aggregate amount of Revolving Loans
outstanding, in each case during such Fiscal Quarter
TO
(b) the average Revolving Loan Commitment Amount during such Fiscal
Quarter.
"VOTING SECURITIES" means, with respect to any Person, Capital Securities
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"WARRANTS" means warrants to purchase shares of Common Stock of the
Borrower that expire on January 31, 2008 and were initially issued by CBI in
connection with the issuance of the CBI Preferred Stock.
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"WELFARE PLAN" means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary all of the outstanding
Capital Securities of which (other than any director's qualifying shares or
investments by foreign nationals mandated by applicable laws) is owned directly
or indirectly by the Borrower.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references in a Loan
Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article,
Section or definition.
SECTION 1.4. ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT. For purposes of this Agreement and each other Loan
Document, all accounting terms not otherwise defined herein shall have the
meanings assigned to such terms in conformity with GAAP. Financial
statements and other information furnished to the Administrative Agent
pursuant to SECTION 7.1.1 shall be prepared in accordance with GAAP. No
Accounting Changes shall affect financial covenants, standards or terms in
this Agreement or any other Loan Document; PROVIDED that the Borrower shall
prepare footnotes to each Compliance Certificate and the financial
statements required to be delivered hereunder that show the differences
between the financial statements delivered (which reflect such Accounting
Changes) and the basis for calculating financial covenant compliance
(without reflecting such Accounting Changes). Unless otherwise expressly
provided, all financial covenants and defined financial terms shall be
computed on a consolidated basis for the Borrower and its Subsidiaries, in
each case without duplication. In addition, with respect to any period
during which a Permitted Acquisition, the Qualified SLB or any Disposition
made in accordance with CLAUSE (n) of SECTION 7.2.11 has occurred (each, a
"SUBJECT TRANSACTION"), EBITDA and the components of Fixed Charge Coverage
Ratio and Interest Coverage Ratio shall be calculated with respect to such
period on a PRO FORMA basis (including PRO FORMA adjustments arising out of
events which are directly attributable to a specific transaction, are
factually supportable and are expected to have a continuing impact, in each
case determined on a basis consistent with the definition of "Permitted
Acquisition") using the historical financial statements of any business so
acquired or to be acquired or the subject of the Qualified SLB or such
Disposition made in accordance with CLAUSE (n) of SECTION 7.2.11 and the
consolidated financial statements of the Borrower and its Subsidiaries
which shall be reformulated as if such Subject Transaction, and any
Indebtedness incurred or repaid in connection therewith, had been
consummated or incurred or repaid at the beginning of such period (and
assuming that such Indebtedness bears interest during any portion of the
applicable measurement period prior to the relevant acquisition at the
weighted average of the interest rates applicable to outstanding Loans
incurred during such period).
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. COMMITMENTS. On the terms and subject to the conditions of this
Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN COMMITMENT. From
time to time on any Business Day occurring from and after the Effective
Date but prior to the Commitment Termination Date,
(a) each Lender agrees that it will make loans (relative to such Lender, its
"REVOLVING LOANS") to the Borrower equal to such Lender's Percentage of
the aggregate amount of each Borrowing of the Revolving Loans requested
by the Borrower to be made on such day; and
(b) the Swing Line Lender agrees that it will make loans (its "SWING LINE
LOANS") to the Borrower equal to the principal amount of the Swing Line
Loan requested by the Borrower to be made on such day. The Commitment of
the Swing Line Lender described in this clause is herein referred to as
its "SWING LINE LOAN COMMITMENT".
On the terms and subject to the conditions hereof, the Borrower may from time to
time borrow, prepay and reborrow Revolving Loans and Swing Line Loans. No Lender
shall be permitted or required to make any Revolving Loan if, after giving
effect thereto, the aggregate outstanding principal amount of all Revolving
Loans of such Lender, together with such Lender's Percentage of the aggregate
amount of all Swing Line Loans and Letter of Credit Outstandings, would exceed
such Lender's Percentage of the lesser of the then existing (x) Revolving Loan
Commitment Amount and (y) the Borrowing Base Amount then in effect. Furthermore,
the Swing Line Lender shall not be permitted or required to make Swing Line
Loans if, after giving effect thereto, (i) the aggregate outstanding principal
amount of all Swing Line Loans would exceed the then existing Swing Line Loan
Commitment Amount or (ii) the sum of all Swing Line Loans, Revolving Loans and
the aggregate amount of Letter of Credit Outstandings would exceed the lesser of
the (x) then existing Revolving Loan Commitment Amount and (y) Borrowing Base
Amount then in effect.
SECTION 2.1.2. LETTER OF CREDIT COMMITMENT. From time to time on any Business
Day occurring from and after the Effective Date but prior to the Commitment
Termination Date, the relevant Issuer agrees that it will
(a) issue one or more standby letters of credit (relative to such Issuer, its
"LETTER OF CREDIT") for the account of the Borrower or any Subsidiary
Guarantor in the Stated Amount requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby Letter of Credit
previously issued hereunder.
No Stated Expiry Date shall extend beyond the earlier of (i) the Commitment
Termination Date and (ii) unless otherwise agreed to by such Issuer in its sole
discretion, one year from the date of
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such extension. No Issuer shall be permitted or required to issue any Letter of
Credit if, after giving effect thereto, (i) the aggregate amount of all Letter
of Credit Outstandings would exceed the Letter of Credit Commitment Amount or
(ii) the sum of the aggregate amount of all Letter of Credit Outstandings plus
the aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the lesser of the (x) then existing Revolving Loan
Commitment Amount and (y) Borrowing Base Amount then in effect.
SECTION 2.2. REDUCTION OF THE COMMITMENT AMOUNTS. The Commitment Amounts are
subject to reduction from time to time as set forth below.
SECTION 2.2.1. OPTIONAL. The Borrower may, from time to time on any Business Day
occurring after the Effective Date, voluntarily reduce the amount of the
Revolving Loan Commitment Amount, the Swing Line Loan Commitment Amount or
the Letter of Credit Commitment Amount on the Business Day so specified by
the Borrower; PROVIDED, HOWEVER, that all such reductions shall require at
least one Business Day's prior notice to the Administrative Agent and be
permanent, and any partial reduction of any Commitment Amount shall be in a
minimum amount of $1,000,000 and in an integral multiple of $1,000,000. Any
optional or mandatory reduction of the Revolving Loan Commitment Amount
pursuant to the terms of this Agreement which reduces the Revolving Loan
Commitment Amount below the sum of (i) the Swing Line Loan Commitment
Amount and (ii) the Letter of Credit Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan Commitment
Amount and/or Letter of Credit Commitment Amount (as directed by the
Borrower in a notice to the Administrative Agent delivered together with
the notice of such voluntary reduction in the Revolving Loan Commitment
Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of
the Swing Line Lender or any Issuer.
SECTION 2.3. BORROWING PROCEDURES. Loans (other than Swing Line Loans) shall be
made by the Lenders in accordance with SECTION 2.3.1, and Swing Line Loans
shall be made by the Swing Line Lender in accordance with SECTION 2.3.2.
SECTION 2.3.1. BORROWING PROCEDURE. In the case of other than Swing Line Loans,
by delivering a Borrowing Request to the Administrative Agent on or before
10:00 a.m. on a Business Day (of which the Administrative Agent shall
inform the Lenders promptly upon receipt thereof), the Borrower may from
time to time irrevocably request, on not less than one Business Day's
notice in the case of Base Rate Loans, or three Business Days' notice in
the case of LIBO Rate Loans, and in either case not more than five Business
Days' notice, that a Borrowing be made, in the case of LIBO Rate Loans, in
a minimum amount of $5,000,000 and an integral multiple of $1,000,000, in
the case of Base Rate Loans, in a minimum amount of $1,000,000 and an
integral multiple of $500,000 or, in either case, in the unused amount of
the applicable Commitment; PROVIDED, HOWEVER, that all of the initial Loans
shall be made as Base Rate Loans. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type
of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. In the case of other than Swing Line Loans, on or before
11:00 a.m. on such Business Day each Lender that has a Commitment to make
the Loans being
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requested shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.3.2. SWING LINE LOANS. (a) By telephonic notice to the Swing Line
Lender on or before 12:00 noon on a Business Day (followed (within one
Business Day) by the delivery of a confirming Borrowing Request), the
Borrower may from time to time irrevocably request that Swing Line Loans be
made by the Swing Line Lender in an aggregate minimum principal amount of
$500,000 and an integral multiple of $500,000. All Swing Line Loans shall
be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made
available by the Swing Line Lender to the Borrower by wire transfer to the
account the Borrower shall have specified in its notice therefor by the
close of business on the Business Day telephonic notice is received by the
Swing Line Lender.
(b) If (i) any Swing Line Loan shall be outstanding for more than four Business
Days, (ii) any Swing Line Loan is or will be outstanding on a date when
the Borrower requests that a Revolving Loan be made, or (iii) any Default
shall occur and be continuing, then each Lender (other than the Swing
Line Lender) irrevocably agrees that it will, automatically and without
notice from the Swing Line Lender, make a Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such
Lender's Percentage of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the "REFUNDED SWING LINE LOANS"). On or before
11:00 a.m. on the first Business Day following receipt by each Lender of
a request to make Revolving Loans as provided in the preceding sentence,
each Lender shall deposit in an account specified by the Swing Line
Lender the amount so requested in same day funds and such funds shall be
applied by the Swing Line Lender to repay the Refunded Swing Line Loans.
At the time the Lenders make the above referenced Revolving Loans the
Swing Line Lender shall be deemed to have made, in consideration of the
making of the Refunded Swing Line Loans, Revolving Loans in an amount
equal to the Swing Line Lender's Percentage of the aggregate principal
amount of the Refunded Swing Line Loans. Upon the making (or deemed
making, in the case of the Swing Line Lender) of any Revolving Loans
pursuant to this clause, the amount so funded shall become outstanding
under such Lender's Revolving Note and shall no longer be owed under the
Swing Line Note. All interest payable with respect to any Revolving Loans
made (or deemed made, in the case of the Swing Line Lender) pursuant to
this clause shall be appropriately adjusted to reflect the period of time
during which the Swing Line Lender had outstanding Swing Line Loans in
respect of which such Revolving Loans were made. Each Lender's obligation
to make the Revolving Loans referred to in this clause shall be absolute
and unconditional and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Swing Line Lender, any
Obligor or any Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default; (iii)
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any adverse change in the condition (financial or otherwise) of any
Obligor; (iv) the acceleration or maturity of any Obligations or the
termination of any Commitment after the making of any Swing Line Loan; (v)
any breach of any Loan Document by any Person; or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before
10:00 a.m. on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case
of Base Rate Loans, or three Business Days' notice in the case of LIBO Rate
Loans, and in either case not more than five Business Days' notice, that
all, or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $1,000,000 be, in the case of Base Rate Loans,
converted into LIBO Rate Loans or be, in the case of LIBO Rate Loans,
converted into Base Rate Loans or continued as LIBO Rate Loans (in the
absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days (but not more than five
Business Days) before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); PROVIDED, HOWEVER, that (x) each such
conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no
portion of the outstanding principal amount of any Loans may be continued
as, or be converted into, LIBO Rate Loans when any Default has occurred and
is continuing.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its obligation
to make, continue or convert LIBO Rate Loans hereunder by causing one of
its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; PROVIDED,
HOWEVER, that such LIBO Rate Loan shall nonetheless be deemed to have been
made and to be held by such Lender, and the obligation of the Borrower to
repay such LIBO Rate Loan shall nevertheless be to such Lender for the
account of such foreign branch, Affiliate or international banking
facility. In addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of SECTIONS 4.1, 4.2,
4.3 or 4.4, it shall be conclusively assumed that each Lender elected to
fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR
Office's interbank eurodollar market.
SECTION 2.6. ISSUANCE PROCEDURES. By delivering to the Administrative Agent an
Issuance Request on or before 10:00 a.m. on a Business Day, the Borrower
may from time to time irrevocably request on not less than three nor more
than ten Business Days' notice, in the case of an initial issuance of a
Letter of Credit and not less than three Business Days' prior notice, in
the case of a request for the extension of the Stated Expiry Date of a
standby Letter of Credit (in each case, unless a shorter notice period is
agreed to by the Issuer, in its sole discretion), that an Issuer issue, or
extend the Stated Expiry Date of, a Letter of Credit in such form as may be
requested by the Borrower and approved by such Issuer, solely for the
purposes described in SECTION 7.1.7. Each Letter of Credit shall by its
terms be stated to expire on a date (its "STATED EXPIRY Date") no later
than the earlier to occur of (i) the Commitment Termination Date or (ii)
(unless otherwise agreed to by an Issuer, in its sole discretion), one year
from the date of its issuance. Each Issuer will
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make available to the beneficiary thereof the original of the Letter of
Credit which it issues.
SECTION 2.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each Letter of
Credit, and without further action, each Lender (other than such Issuer)
shall be deemed to have irrevocably purchased, to the extent of its
Percentage to make Revolving Loans, a participation interest in such Letter
of Credit (including the Contingent Liability and any Reimbursement
Obligation with respect thereto), and such Lender shall, to the extent of
its Percentage to make Revolving Loans, be responsible for reimbursing
within one Business Day such Issuer for Reimbursement Obligations which
have not been reimbursed by the Borrower in accordance with SECTION 2.6.3.
In addition, such Lender shall, to the extent of its Percentage to make
Revolving Loans, be entitled to receive a ratable portion of the Letter of
Credit fees payable pursuant to SECTION 3.3.4 with respect to each Letter
of Credit (other than the issuance fees payable to an Issuer of such Letter
of Credit pursuant to the last sentence of SECTION 3.3.4) and of interest
payable pursuant to SECTION 3.2 with respect to any Reimbursement
Obligation. To the extent that any Lender has reimbursed any Issuer for a
Disbursement, such Lender shall be entitled to receive its ratable portion
of any amounts subsequently received (from the Borrower or otherwise) in
respect of such Disbursement.
SECTION 2.6.2. DISBURSEMENTS. An Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by such Issuer, together with notice of the date (the
"DISBURSEMENT DATE") such payment shall be made (each such payment, a
"DISBURSEMENT"). Subject to the terms and provisions of such Letter of
Credit and this Agreement, the applicable Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. Prior to 11:00
a.m. on the first Business Day following the Disbursement Date, the
Borrower will reimburse the Administrative Agent, for the account of the
applicable Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at a rate per annum
equal to the rate per annum then in effect for Base Rate Loans (with the
then Applicable Margin for Revolving Loans accruing on such amount)
pursuant to SECTION 3.2 for the period from the Disbursement Date through
the date of such reimbursement. Without limiting in any way the foregoing
and notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrower hereby
acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder (whether the account party on such Letter of Credit
is the Borrower or a Subsidiary Guarantor).
SECTION 2.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT OBLIGATION") of
the Borrower under SECTION 2.6.2 to reimburse an Issuer with respect to
each Disbursement (including interest thereon), and, upon the failure of
the Borrower to reimburse an Issuer, each Lender's obligation under SECTION
2.6.1 to reimburse an Issuer, shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Lender, as the case may be,
may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms
of the applicable Letter of
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Credit (if, in such Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or misapplication by
the beneficiary of the proceeds of such Letter of Credit; PROVIDED,
HOWEVER, that after paying in full its Reimbursement Obligation hereunder,
nothing herein shall adversely affect the right of the Borrower or such
Lender, as the case may be, to commence any proceeding against an Issuer
for any wrongful Disbursement made by such Issuer under a Letter of Credit
as a result of acts or omissions constituting gross negligence or wilful
misconduct on the part of such Issuer.
SECTION 2.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Default under SECTION 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to
the Borrower of its obligations under this Section, following the
occurrence and during the continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit shall, without demand
upon or notice to the Borrower or any other Person, be deemed to have been
paid or disbursed by the Issuers of such Letters of Credit (notwithstanding
that such amount may not in fact have been paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse the Issuers for
the amount deemed to have been so paid or disbursed by such Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. The Borrower, each other
Obligor and, to the extent set forth in SECTION 2.6.1, each Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. No Issuer (except to the extent of its own
gross negligence or wilful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any Letter of Credit or any document submitted by any party in connection
with the application for and issuance of a Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or the
proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions required in
order to demand payment under a Letter of Credit;
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(d) errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender hereunder. In furtherance
and not in limitation or derogation of any of the foregoing, any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross
negligence or wilful misconduct) shall be binding upon each Obligor and each
such Secured Party, and shall not put such Issuer under any resulting liability
to any Obligor or any Secured Party, as the case may be.
SECTION 2.7. NOTES. (a) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver
to such Lender a Note evidencing the Loans made by, and payable to the
order of, such Lender in a maximum principal amount equal to such Lender's
Percentage of the original applicable Commitment Amount. The Borrower
hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Note (or on any
continuation of such grid), which notations, if made, shall evidence, INTER
ALIA, the date of, the outstanding principal amount of, and the interest
rate and Interest Period applicable to the Loans evidenced thereby. Such
notations shall, to the extent not inconsistent with notations made by the
Administrative Agent in the Register, be conclusive and binding on each
Obligor absent manifest error; PROVIDED, HOWEVER, that the failure of any
Lender to make any such notations shall not limit or otherwise affect any
Obligations of any Obligor.
(b) The Borrower hereby designates the Administrative Agent to serve as the
Borrower's agent, solely for the purpose of this clause, to maintain a
register (the "REGISTER") on which the Administrative Agent will record
each Lender's Commitment, the Loans made by each Lender and each repayment
in respect of the principal amount of the Loans, annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to SECTION
10.11.1. Failure to make any recordation, or any error in such recordation,
shall not affect any Obligor's Obligations. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person in whose
name a Loan is registered (or, if applicable, to which a Note has been
issued) as the owner thereof for the purposes of all Loan Documents,
notwithstanding notice or any provision herein to the contrary. Any
assignment or transfer of a Commitment or the Loans made pursuant hereto
shall be registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement that has been
executed by the requisite parties pursuant to SECTION 10.11.1. No
assignment or transfer of a Lender's Commitment or Loans shall be effective
unless such assignment or transfer shall have been recorded in the Register
by the Administrative Agent as provided in this Section.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS; APPLICATION. The Borrower agrees that
the Loans shall be repaid and prepaid pursuant to the following terms.
SECTION 3.1.1. REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in full the
unpaid principal amount of each Loan upon the applicable Stated Maturity
Date therefor. Prior thereto, payments and prepayments of the Loans shall
or may be made as set forth below.
(a) From time to time on any Business Day, the Borrower may make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of
any
(i) Revolving Loans; PROVIDED, HOWEVER, that (A) any such prepayment of
Revolving Loans shall be made PRO RATA among the Revolving Loans of the
same type and, if applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans; (B) all such voluntary
prepayments shall require at least one but no more than five Business
Days' prior notice to the Administrative Agent; and (C) all such
voluntary partial prepayments shall be, in the case of LIBO Rate Loans,
in an aggregate minimum amount of $1,000,000 and an integral multiple of
$1,000,000 and, in the case of Base Rate Loans, in an aggregate minimum
amount of $500,000 and an integral multiple of $500,000; and
(ii) Swing Line Loans; PROVIDED, that (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before
1:00 p.m. on the day of such prepayment (such notice to be confirmed in
writing within 24 hours thereafter); and (B) all such voluntary partial
prepayments shall be in an aggregate minimum amount of $500,000 and an
integral multiple of $500,000.
(b) On each date when the sum of (i) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the lesser of (x) the then
existing Revolving Loan Commitment Amount (as it may be reduced from time
to time pursuant to this Agreement) and (y) the then applicable Borrowing
Base Amount, the Borrower shall make a mandatory prepayment of Revolving
Loans or Swing Line Loans (or both) and, if necessary, Cash Collateralize
all Letter of Credit Outstandings, in an aggregate amount equal to such
excess.
(c) Immediately upon any acceleration of the Stated Maturity Date of any Loans
pursuant to SECTION 8.2 or SECTION 8.3, the Borrower shall repay all the
Loans, unless, pursuant to SECTION 8.3, only a portion of all the Loans
is so accelerated (in which case the portion so accelerated shall be so
repaid).
(d) Within three Business Days of the receipt by Taylor Holding Co. of any
principal or interest on the CBI Senior Subordinated Notes, the Borrower
will repay the Loans in an amount equal to the lesser of (i) the amount
of principal or interest received therefrom and (ii) the amount of Loans
outstanding on the date of such repayment.
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(e) If for any period of three consecutive Business Days the sum of cash and
Cash Equivalent Investments held by the Borrower and its Subsidiaries
exceeds $10,000,000, then the Borrower shall on the fourth consecutive
Business Day make a mandatory prepayment of Loans in an amount equal to the
lesser of (x) such excess amount and (y) the aggregate outstanding
principal amount of all Loans.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4.
SECTION 3.1.2. APPLICATION. Amounts prepaid pursuant to SECTION 3.1.1 shall be
applied as set forth in this Section. Each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such prepayment
or repayment, FIRST, to the principal amount thereof being maintained as
Base Rate Loans, and SECOND, subject to the terms of SECTION 4.4, to the
principal amount thereof being maintained as LIBO Rate Loans.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal amount
of the Loans shall accrue and be payable in accordance with the terms set
forth below.
SECTION 3.2.1. RATES. Subject to SECTION 2.3.2, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice, the Borrower
may elect that the Loans comprising a Borrowing accrue interest at a rate
per annum:
(a) on that portion maintained from time to time as a Base Rate Loan, equal to
the sum of the Alternate Base Rate from time to time in effect plus the
Applicable Margin; PROVIDED that all Swing Line Loans shall always accrue
interest at the then effective Applicable Margin for Revolving Loans
maintained as Base Rate Loans; and
(b) on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted)
for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. POST-MATURITY RATES. At the election of the Administrative Agent
or the Required Lenders, after the occurrence of an Event of Default
described in SECTION 8.1.1 or SECTION 8.1.3 (resulting from non compliance
with SECTION 7.2.4, or CLAUSE (c) of SECTION 7.1.1) and automatically after
the occurrence of an Event of Default described in SECTION 8.1.9, in each
case, for so long as it continues, the Loans and other Obligations shall
bear interest at a rate that is two percent (2.0%) in excess of the rates
otherwise payable under this Agreement.
SECTION 3.2.3. PAYMENT DATES. Interest accrued on each Loan shall be payable,
without duplication:
(a) on the Stated Maturity Date therefor;
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(b) with respect to Base Rate Loans, on each Monthly Payment Date occurring
after the Effective Date;
(c) with respect to LIBO Rate Loans, on the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months,
on the date occurring on each three-month interval occurring after the
first day of such Interest Period);
(d) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day
when interest would not otherwise have been payable pursuant to CLAUSE
(c), on the date of such conversion; and
(e) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to SECTION 8.2 or SECTION 8.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations after the date such
amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. FEES. The Borrower agrees to pay the fees set forth below. All such
fees shall be non-refundable.
SECTION 3.3.1. UTILIZATION FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender, for the period (including any portion
thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of ARTICLE V) commencing on
the Effective Date and continuing through the Commitment Termination Date,
a utilization fee in an amount equal to the Applicable Utilization Fee
Margin, in each case on such Lender's Percentage of the sum of the average
daily unused portion of the Revolving Loan Commitment Amount (net of Letter
of Credit Outstandings). All utilization fees payable pursuant to this
Section shall be calculated on a year comprised of 360 days and payable by
the Borrower in arrears on each Quarterly Payment Date, commencing with the
first Quarterly Payment Date following the Effective Date, and on the
Commitment Termination Date. The making of Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the
calculation of utilization fees to be paid by the Borrower to the Lenders.
SECTION 3.3.2. AGENT'S FEE. The Borrower agrees to pay to the Administrative
Agent, for its own account, the fees in the amounts and on the dates set
forth in the Fee Letter.
SECTION 3.3.3. LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Administrative Agent, for the PRO RATA account of the applicable Issuer and
each Lender, a Letter of Credit fee in an amount equal to the then
effective Applicable Margin for Revolving Loans maintained as LIBO Rate
Loans, multiplied by the Stated Amount of each such Letter of Credit, such
fees being payable, without duplication, quarterly in arrears on each
Quarterly Payment Date following the date of issuance of each Letter of
Credit, upon the expiration or termination of such Letter of Credit and on
the Commitment Termination Date. The Borrower further agrees to pay to the
applicable Issuer (i) a fee in the amount of 1/4 of 1% per annum on the
Stated Amount of each Letter of Credit, payable (without duplication)
quarterly in arrears on each Quarterly Payment Date following the date of
issuance of
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each Letter of Credit, upon the expiration or termination of such Letter of
Credit and on the Commitment Termination Date and (ii) its customary
administrative, issuance, amendment, payment and negotiation fees on the
dates and in the amounts from time to time notified to the Borrower by such
Issuer or as otherwise agreed to by the Borrower and such Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine (which
determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes
it unlawful, or any Governmental Authority asserts that it is unlawful, for
such Lender to make or continue any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue or convert
any such LIBO Rate Loan shall, upon such determination, forthwith be
suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and all outstanding
LIBO Rate Loans payable to such Lender shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant Interest Period
are not available to it in its relevant market; or
(b) by reason of circumstances affecting its relevant market, adequate means do
not exist for ascertaining the interest rate applicable hereunder to LIBO
Rate Loans;
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. The Borrower agrees to
reimburse each Lender and Issuer for any increase in the cost to such
Lender or Issuer of, or any reduction in the amount of any sum receivable
by such Secured Party in respect of, such Secured Party's Commitments and
the making of Credit Extensions hereunder (including the making, continuing
or maintaining (or of its obligation to make or continue) any Loans as, or
of converting (or of its obligation to convert) any Loans into, LIBO Rate
Loans) that arise in connection with any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in after
the Closing Date of, any law or regulation, directive, guideline, decision
or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs
and Taxes which are governed by SECTIONS 4.5 and 4.6,
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respectively. Notwithstanding anything to the contrary contained herein,
(i) the Borrower will not be required to compensate any Lender for any such
amounts incurred by such Lender more than one hundred eighty (180) days
prior to such Lender's written request to the Borrower for such
compensation and (ii) a Lender shall not be entitled to any compensation
described in this Section unless, at the time it requests such
compensation, it is the policy or general practice of such Lender to
request compensation for comparable costs in similar circumstances under
other comparable loan agreements. Each affected Secured Party shall
promptly notify the Administrative Agent and the Borrower in writing of the
occurrence of any such event, stating the reasons therefor and the
additional amount required fully to compensate such Secured Party for such
increased cost or reduced amount. Such additional amounts shall be payable
by the Borrower directly to such Secured Party within five days of its
receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to make or continue any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal amount of any
LIBO Rate Loan on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to ARTICLE III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance with the
Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate Loans in
accordance with the Continuation/Conversion Notice therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of,
any law or regulation, directive, guideline, decision or request (whether
or not having the force of law) of any Governmental Authority affects or
would affect the amount of capital required or expected to be maintained by
any Secured Party or any Person controlling such Secured Party, and such
Secured Party determines (in good faith but in its sole and absolute
discretion) that the rate of return on its or such controlling Person's
capital as a consequence of the Commitments or the Credit Extensions made,
or the Letters of Credit participated in, by such Secured Party is reduced
to a level below that which such Secured Party or such controlling Person
could have achieved but for the occurrence of any such circumstance, then
upon notice from time to time by such Secured Party to the
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Borrower, the Borrower shall within five days following receipt of such
notice pay directly to such Secured Party additional amounts sufficient to
compensate such Secured Party or such controlling Person for such reduction
in rate of return. A statement of such Secured Party as to any such
additional amount or amounts shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such
Secured Party may use any method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable. Notwithstanding
anything to the contrary contained herein, (i) the Borrower will not be
required to compensate any Lender for any such amounts incurred by such
Lender more than one hundred eighty (180) days prior to such Lender's
written request to the Borrower for such compensation and (ii) a Lender
shall not be entitled to any compensation described in this Section unless,
at the time it requests such compensation, it is the policy or general
practice of such Lender to request compensation for comparable costs in
similar circumstances under other comparable loan agreements.
SECTION 4.6. TAXES. The Borrower covenants and agrees as follows with respect to
Taxes.
(a) Any and all payments by the Borrower under each Loan Document shall be made
without setoff, counterclaim or other defense, and, except as otherwise
provided in this Section, free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any Taxes
are imposed and required to be deducted or withheld from any payment
required to be made by any Obligor to or on behalf of any Secured Party
under any Loan Document, then:
(i) subject to CLAUSE (f), if such Taxes are Non-Excluded Taxes, the amount of
such payment shall be increased as may be necessary so that such payment is
made, after withholding or deduction for or on account of such Taxes, in an
amount that is not less than the amount provided for in such Loan Document;
and
(ii) the Borrower shall withhold the full amount of such Taxes from such payment
(as increased pursuant to CLAUSE (a)(i)) and shall pay such amount to the
Governmental Authority imposing such Taxes in accordance with applicable
law.
(b) In addition, the Borrower shall pay all Other Taxes imposed to the relevant
Governmental Authority imposing such Other Taxes in accordance with
applicable law, except Other Taxes imposed on or with respect to any
assignment or sale contemplated by SECTION 10.11.1 or SECTION 10.11.2.
(c) As promptly as practicable after the payment by the Borrower of any Taxes
or Other Taxes, and in any event within 45 days of any such payment being
due, the Borrower shall furnish to the Administrative Agent a copy of an
official receipt (or a certified copy thereof) evidencing the payment of
such Taxes or Other Taxes or a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent. The Administrative Agent shall make copies thereof
available to any Lender upon request therefor.
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(d) Subject to CLAUSE (f), the Borrower shall indemnify each Secured Party for
any Non-Excluded Taxes and Other Taxes (except Other Taxes not payable by
the Borrower pursuant to CLAUSE (b)) levied, imposed or assessed by any
Governmental Authority on (and whether or not paid directly by) such
Secured Party whether or not such Non-Excluded Taxes or Other Taxes are
correctly or legally asserted by the relevant Governmental Authority.
Promptly upon having knowledge that any such Non-Excluded Taxes or Other
Taxes have been levied, imposed or assessed, and promptly upon written
notice thereof by any Secured Party, the Borrower shall pay such
Non-Excluded Taxes or Other Taxes directly to the relevant Governmental
Authority. In addition, the Borrower shall indemnify each Secured Party for
any incremental Taxes that may become payable by such Secured Party as a
result of any failure of the Borrower to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to CLAUSE (c), documentation evidencing the payment of
Taxes or Other Taxes; PROVIDED, HOWEVER, the Borrower shall not be required
to indemnify any Secured Party for any incremental Taxes resulting from a
failure of the Borrower to pay any Taxes when due to the appropriate
Governmental Authority if such failure by the Borrower is a result of the
failure of a Secured Party to provide written notice to the Borrower of any
Non-Excluded Taxes and Other Taxes levied, imposed or assessed on such
Secured Party within 90 days of such levy, imposition or assessment;
PROVIDED, FURTHER, the Borrower shall be required to indemnify such Secured
Party for any incremental Taxes relating to any such failure of the
Borrower occurring after such Secured Party provides such written notice.
With respect to indemnification for Non-Excluded Taxes and Other Taxes
actually paid by any Secured Party or the indemnification provided in the
immediately preceding sentence, such indemnification shall be made within
30 days after the date such Secured Party makes written demand therefor
(showing in reasonable detail the basis and amount for such
indemnification). The Borrower acknowledges that any payment made to any
Secured Party or to any Governmental Authority in respect of the
indemnification obligations of the Borrower provided in this clause shall
constitute a payment in respect of which the provisions of CLAUSE (a) and
this clause shall apply.
(e) Each Non-U.S. Secured Party, on or prior to the date on which such Non-U.S.
Secured Party becomes a Secured Party hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent,
but only for so long as such Non-U.S. Secured Party is legally able to do
so), shall deliver to the Borrower and the Administrative Agent either (i)
two duly completed copies of either (x) Internal Revenue Service Form
W-8BEN claiming eligibility of such Non-U.S. Secured Party for benefits of
an income tax treaty to which the United States is a party or (y) Internal
Revenue Service Form W-8ECI, or in either case an applicable successor
form; or (ii) in the case of a Non-U.S. Secured Party that is legally
entitled to claim exemption from United States federal withholding tax
under Section 871(h) or Section 881(c) of the Code with respect to payments
of "portfolio interest", (x) a certificate to the effect that such Non-U.S.
Secured Party is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code (referred to as an "EXEMPTION
CERTIFICATE") and (y) two duly completed copies of Internal Revenue Service
Form W-8BEN or applicable successor form. Each Non-U.S. Secured Party shall
deliver such
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forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Secured Party. Each Non-U.S. Secured Party shall
promptly notify the Borrower at any time it determines that it is no longer
in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).
(f) The Borrower shall not be obligated to pay any additional amounts to any
Secured Party pursuant to CLAUSE (a)(i), or to indemnify any Secured Party
pursuant to CLAUSE (d), in respect of any Non-Excluded Taxes or Other Taxes
to the extent imposed as a result of (i) the failure of such Secured Party
to deliver to the Borrower the form or forms and/or an Exemption
Certificate, as applicable to such Secured Party, pursuant to CLAUSE (e),
(ii) such form or forms and/or Exemption Certificate not establishing a
complete exemption from U.S. federal withholding tax or the information or
certifications made therein by the Secured Party being untrue or inaccurate
on the date delivered in any material respect, or (iii) the Secured Party
designating (x) a successor lending office at which it maintains its Loans
or (y) an Assignee Lender which has the effect of causing such Secured
Party or Assignee Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; PROVIDED, HOWEVER,
that the Borrower shall be obligated to pay additional amounts to any such
Secured Party pursuant to CLAUSE (a)(i), and to indemnify any such Secured
Party pursuant to CLAUSE (d), in respect of United States federal
withholding taxes if (i) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal withholding
tax or inaccuracy or untruth contained therein resulted from a change in
any applicable statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the Closing Date,
which change rendered such Secured Party no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible
for a complete exemption from U.S. federal withholding tax, or rendered the
information or certifications made in such form or forms or Exemption
Certificate untrue or inaccurate in a material respect, (ii) the
redesignation of the Secured Party's lending office was made at the request
of the Borrower or (iii) the obligation to pay any additional amounts to
any such Secured Party pursuant to CLAUSE (a)(i) or to indemnify any such
Secured Party pursuant to CLAUSE (d) is with respect to an Assignee Lender
that becomes an Assignee Lender as a result of an assignment made at the
request of the Borrower.
(g) In the event that any Secured Party receives a refund in respect of any
Non-Excluded Taxes or Other Taxes as to which the Borrower had paid amounts
pursuant to CLAUSE (a) or CLAUSE (b) or it has been indemnified by the
Borrower pursuant to CLAUSE (d) and such Secured Party determines in its
sole, good faith judgment that such refund is attributable to such
Non-Excluded Taxes or Other Taxes, then such Secured Party shall promptly
notify the Administrative Agent and the Borrower and shall within 30
Business Days remit to the Borrower an amount as such Secured Party
reasonably determines to be the proportion of the refunded amount as will
leave it, after such remittance, in no better or worse position than it
would have been if the Non-Excluded Taxes or Other Taxes had not been
imposed and the corresponding payment not been made; PROVIDED, HOWEVER,
that the Borrower, upon the written request of such Secured Party, agrees
to repay the amount paid over to the Borrower to such Secured Party in the
event such Secured Party is
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required to repay such refund to a taxation authority. A Secured Party
shall not be obligated to disclose information regarding its tax affairs or
computations to the Borrower in connection with this CLAUSE (g).
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly provided in
a Loan Document, all payments by the Borrower pursuant to each Loan
Document shall be made by the Borrower to the Administrative Agent for the
PRO RATA account of the Secured Parties entitled to receive such payment.
All payments shall be made without setoff, deduction or counterclaim not
later than 11:00 a.m. on the date due in same day or immediately available
funds to such account as the Administrative Agent shall specify from time
to time by notice to the Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next
succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Secured Party its share, if any, of such payments
received by the Administrative Agent for the account of such Secured Party.
All interest (including interest on LIBO Rate Loans) and fees shall be
computed on the basis of the actual number of days (including the first day
but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the
case of interest on a Base Rate Loan (calculated at other than the Federal
Funds Rate), 365 days or, if appropriate, 366 days). Payments due on other
than a Business Day shall (except as otherwise required by CLAUSE (b) of
the definition of "Interest Period") be made on the next succeeding
Business Day and such extension of time shall be included in computing
interest and fees in connection with that payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Secured Party shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff
or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of SECTIONS 4.3, 4.4, 4.5 or
4.6) in excess of its PRO RATA share of payments obtained by all Secured
Parties, such Secured Party shall purchase from the other Secured Parties
such participations in Credit Extensions made by them as shall be necessary
to cause such purchasing Secured Party to share the excess payment or other
recovery ratably (to the extent such other Secured Parties were entitled to
receive a portion of such payment or recovery) with each of them; PROVIDED,
HOWEVER, that if all or any portion of the excess payment or other recovery
is thereafter recovered from such purchasing Secured Party, the purchase
shall be rescinded and each Secured Party which has sold a participation to
the purchasing Secured Party shall repay to the purchasing Secured Party
the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Secured Party's ratable share (according to
the proportion of (a) the amount of such selling Secured Party's required
repayment to the purchasing Secured Party TO (b) total amount so recovered
from the purchasing Secured Party) of any interest or other amount paid or
payable by the purchasing Secured Party in respect of the total amount so
recovered. The Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to SECTION 4.9) with respect to such participation as
fully as if such Secured Party were the direct creditor of the Borrower in
the amount of such participation. If under any applicable bankruptcy,
insolvency or other similar law any Secured Party receives a secured claim
in lieu of a setoff to which this
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Section applies, such Secured Party shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent
with the rights of the Secured Parties entitled under this Section to share
in the benefits of any recovery on such secured claim.
SECTION 4.9. SETOFF. Each Secured Party shall, upon the occurrence and during
the continuance of any Default described in CLAUSES (a) through (d) of
SECTION 8.1.9 or, with the consent of the Required Lenders, upon the
occurrence and during the continuance of any other Event of Default, have
the right to appropriate and apply to the payment of the Obligations owing
to it (whether or not then due), and (as security for such Obligations) the
Borrower hereby grants to each Secured Party a continuing security interest
in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with such Secured Party; PROVIDED,
HOWEVER, that any such appropriation and application shall be subject to
the provisions of SECTION 4.8. Each Secured Party agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and
application made by such Secured Party; PROVIDED, HOWEVER, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Secured Party under this Section are in
addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Secured Party may have.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. INITIAL CREDIT EXTENSION. The obligations of the Lenders and, if
applicable, the Issuers to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Article.
SECTION 5.1.1. RESOLUTIONS, ETC. The Administrative Agent shall have received
from each Obligor, as applicable, (i) a copy of a good standing
certificate, dated a date reasonably close to the Closing Date, for each
such Person and (ii) a certificate, dated the Closing Date with
counterparts for each Lender, duly executed and delivered by such Person's
Secretary or Assistant Secretary, managing member or general partner, as
applicable, as to
(a) resolutions of each such Person's Board of Directors (or other managing
body, in the case of other than a corporation) then in full force and
effect authorizing the execution, delivery and performance of each Loan
Document to be executed by such Person and the transactions contemplated
hereby and thereby;
(b) the incumbency and signatures of those of its officers, managing member or
general partner, as applicable, authorized to act with respect to each Loan
Document to be executed by such Person; and
(c) the full force and validity of each Organic Document of such Person and
copies thereof;
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upon which certificates each Secured Party may conclusively rely until it
shall have received a further certificate of the Secretary, Assistant
Secretary, managing member or general partner, as applicable, of any such
Person canceling or amending the prior certificate of such Person.
SECTION 5.1.2. CLOSING DATE CERTIFICATE. The Administrative Agent shall have
received, with counterparts for each Lender, the Borrower Closing Date
Certificate, dated the Closing Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties of the Borrower as of
such date, and, at the time each such certificate is delivered, such
statements shall in fact be true and correct. All documents and agreements
required to be appended to the Borrower Closing Date Certificate shall be
in form and substance satisfactory to the Administrative Agent.
SECTION 5.1.3. ISSUANCE OF SENIOR UNSECURED NOTES. The Administrative Agent
shall have received evidence satisfactory to it that the Borrower shall
have received the proceeds from the issuance of the Senior Unsecured Notes
in an original principal amount of $177,000,000 pursuant to the Senior
Unsecured Note Documents, which shall be in all respects in form and
substance satisfactory to the Administrative Agent.
SECTION 5.1.4. PAYMENT OF OUTSTANDING INDEBTEDNESS, ETC. All Indebtedness
identified in ITEM 7.2.2(h) of the Disclosure Schedule (including all
Indebtedness under the Existing Credit Agreement), together with all
interest, all prepayment premiums and other amounts due and payable with
respect thereto, shall have been paid in full from the proceeds of the
issuance of the Senior Unsecured Notes and the initial Credit Extension and
the commitments in respect of such Indebtedness shall have been terminated,
and all Liens securing payment of any such Indebtedness have been released
and the Administrative Agent shall have received all Uniform Commercial
Code Form UCC-3 termination statements or other instruments as may be
suitable or appropriate in connection therewith.
SECTION 5.1.5. CLOSING FEES, EXPENSES, ETC. The Administrative Agent shall have
received for its own account, or for the account of each Lender, as the
case may be, all fees, costs and expenses due and payable pursuant to
SECTIONS 3.3 and, if then invoiced, 10.3.
SECTION 5.1.6. FINANCIAL INFORMATION, ETC. The Administrative Agent shall have
received, with counterparts for each Lender,
(a) audited consolidated financial statements of the Borrower and its
Subsidiaries as at August 25, 2001;
(b) a PRO FORMA consolidated balance sheet of the Borrower and its
Subsidiaries, as of the accounting month end closest to the Closing Date
certified by the chief financial or accounting Authorized Officer of the
Borrower, giving effect to the consummation of the transactions
contemplated by this Agreement, which shall be satisfactory to the
Administrative Agent; and
(c) a Borrowing Base Certificate, dated as of the date of the initial Credit
Extension and calculated as of December 29, 2001, duly executed (and with
all schedules thereto duly
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completed) and delivered by the chief financial or accounting Authorized
Officer of the Borrower.
SECTION 5.1.7. COMPLIANCE CERTIFICATE. The Administrative Agent shall have
received, with counterparts for each Lender, an initial Compliance
Certificate on a PRO FORMA basis as if the initial Credit Extension had
been made as of November 24, 2001 and as to such items therein as the
Administrative Agent reasonably requests, dated the date of the initial
Credit Extension, duly executed (and with all schedules thereto duly
completed) and delivered by the chief financial or accounting Authorized
Officer of the Borrower.
SECTION 5.1.8. OPINIONS OF COUNSEL. The Administrative Agent shall have received
opinions, dated the Closing Date and addressed to the Administrative Agent
and all Lenders, from
(a) Schulte Roth & Zabel LLP, New York counsel to the Obligors, in form and
substance satisfactory to the Administrative Agent (which opinion shall
include, among others, an unqualified opinion to the effect that the
Obligations of CBI arising in connection with the Subsidiary Guaranty will
be "Designated Senior Indebtedness"); and
(b) local counsel to the Obligors in the following jurisdictions, in form and
substance, and from counsel, satisfactory to the Administrative Agent:
(i) Illinois; and
(ii) Texas.
SECTION 5.1.9. FILING AGENT, ETC. All Uniform Commercial Code financing
statements or other similar financing statements and Uniform Commercial
Code (Form UCC-3) termination statements required pursuant to the Loan
Documents (collectively, the "FILING STATEMENTS") shall have been delivered
to CT Corporation System or another similar filing service company
acceptable to the Administrative Agent (the "FILING AGENT"). The Filing
Agent shall have acknowledged in a writing satisfactory to the
Administrative Agent and its counsel (i) the Filing Agent's receipt of all
Filing Statements, (ii) that the Filing Statements have either been
submitted for filing in the appropriate filing offices or will be submitted
for filing in the appropriate offices within ten days following the Closing
Date and (iii) that the Filing Agent will notify the Administrative Agent
and its counsel of the results of such submissions within 30 days following
the Closing Date.
SECTION 5.1.10. SUBSIDIARY GUARANTY. The Administrative Agent shall have
received, with counterparts for each Lender, the Subsidiary Guaranty, dated
as of the date hereof, duly executed and delivered by an Authorized Officer
of each U.S. Subsidiary.
SECTION 5.1.11. SOLVENCY, ETC. The Administrative Agent shall have received,
with counterparts for each Lender, a solvency certificate duly executed and
delivered by the chief financial or accounting Authorized Officer of the
Borrower, dated as of the Closing Date, in form and substance satisfactory
to the Administrative Agent.
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SECTION 5.1.12. PLEDGE AND SECURITY AGREEMENTS. The Administrative Agent shall
have received, with counterparts for each Lender,
(a) the Borrower Pledge and Security Agreement and the Subsidiary Pledge and
Security Agreement, in each case dated as of the date hereof, duly
executed and delivered by an Authorized Officer of the Borrower and each
U.S. Subsidiary of the Borrower, as applicable, together with
(i) certificates evidencing all of the issued and outstanding Capital
Securities pledged pursuant to the applicable Pledge and Security
Agreement, which certificates in each case shall be accompanied by
undated instruments of transfer duly executed in blank, or, if any
Capital Securities are uncertificated Capital Securities, confirmation
and evidence satisfactory to the Administrative Agent that the security
interest therein has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in accordance
with Articles 8 and 9 of the UCC and all laws otherwise applicable to the
perfection of the pledge of such Capital Securities;
(ii) all Pledged Notes (as defined in the applicable Pledge and Security
Agreement), if any, evidencing Indebtedness payable to the Borrower or
any such Subsidiary duly endorsed to the order of the Administrative
Agent, together with Filing Statements (or similar instruments) in
respect of such Pledged Notes to be filed in such jurisdictions as the
Administrative Agent may reasonably request;
(iii) a valid first priority perfected security interest, pursuant to the
Account Control Agreement, in all CBI Senior Subordinated Notes owing to
Taylor Holding Co;
(iv) executed copies of Filing Statements naming the Borrower and each U.S.
Subsidiary as a debtor and the Administrative Agent as the secured party,
or other similar instruments or documents to be filed under the UCC of
all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interests of the
Administrative Agent pursuant to each such Pledge and Security Agreement;
(v) executed copies of proper UCC Form UCC-3 termination statements, if any,
necessary to release all Liens and other rights of any Person (i) in any
collateral described in any security agreement previously granted by any
Person, and (ii) securing any of the Indebtedness identified in ITEM
7.2.2(H) of the Disclosure Schedule, together with such other UCC Form
UCC-3 termination statements as the Administrative Agent may reasonably
request from such Obligors; and
(vi) certified copies of UCC Requests for Information or Copies (Form UCC-11),
or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near to the Closing Date,
listing all effective financing statements which name the Borrower or any
U.S. Subsidiary (under its present name and any previous names) as the
debtor, together with copies of such financing statements (none of which
shall cover any collateral described in any Loan Document); and
(b) the Administrative Agent and its counsel shall be satisfied that (i) the
Lien granted to the Administrative Agent, for the benefit of the Secured
Parties in the collateral described
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above is a first priority (or local equivalent thereof) security interest;
and (ii) no Lien exists on any of the collateral described above other than
the Lien created in favor of the Administrative Agent, for the benefit of
the Secured Parties, pursuant to a Loan Document.
SECTION 5.1.13. PATENT SECURITY AGREEMENT, COPYRIGHT SECURITY AGREEMENT AND
TRADEMARK SECURITY AGREEMENT. The Administrative Agent shall have received
a Patent Security Agreement, a Copyright Security Agreement and a Trademark
Security Agreement, as applicable, each dated as of the date hereof, duly
executed and delivered by each Obligor that has delivered a Security
Agreement.
SECTION 5.1.14. INSURANCE. The Administrative Agent shall have received, with
copies for each Lender, certified copies of the insurance policies (or
binders in respect thereof), from one or more insurance companies
satisfactory to the Administrative Agent, evidencing coverage required to
be maintained pursuant to each Loan Document.
SECTION 5.1.15. MORTGAGES. The Administrative Agent shall have received
counterparts of each Mortgage, dated as of the date hereof, duly executed
by the applicable Obligor, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each Mortgage as may be
necessary or, in the opinion of the Administrative Agent, desirable to
create a valid, perfected first priority Lien against the properties
purported to be covered thereby; and
(b) such other approvals, opinions, or documents as the Administrative Agent
may request in form and substance satisfactory to the Administrative Agent
including consents and estoppel agreements from landlords, in form and
substance satisfactory to the Administrative Agent and the title insurer,
and a real estate appraisal for each such property prepared in accordance
with the requirements of the Financial Institutions Reform Recovery and
Enforcement Act of 1989 and the regulations promulgated thereunder.
SECTION 5.1.16. INTERCREDITOR AGREEMENT. The Administrative Agent shall have
received, with counterparts for each Lender, the Intercreditor Agreement,
dated as of the date hereof, duly executed and delivered by the
Administrative Agent and Scotia Capital, and acknowledged by the Borrower.
SECTION 5.1.17. DELIVERY OF NOTES. The Administrative Agent shall have received,
for the account of each Lender that has requested a Note, such Lender's
Note duly executed and delivered by an Authorized Officer of the Borrower.
SECTION 5.1.18. REVOLVING LOAN COMMITMENT AMOUNT AVAILABILITY. The unused
portion of the Revolving Loan Commitment Amount on the Closing Date
(following the initial Credit Extension) shall equal or exceed $22,500,000.
SECTION 5.1.19. CBI INDENTURE ACKNOWLEDGMENT. The Administrative Agent shall
have received, with copies for each Lender, a letter, in form and substance
satisfactory to the
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Administrative Agent, from CBI to the trustee under the CBI Indenture,
stating that under the terms of the CBI Indenture (i) the indebtedness
arising under this Agreement and the Subsidiary Guaranty collectively will
be deemed "Designated Senior Indebtedness"; and (ii) the Administrative
Agent shall be the "Senior Representative" for "Designated Senior
Indebtedness" (each such term as defined in the CBI Indenture).
SECTION 5.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and each
Issuer to make any Credit Extension shall be subject to and the
satisfaction of each of the conditions precedent set forth below.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before and
after giving effect to any Credit Extension and the application of the
proceeds thereof (but, if any Default of the nature referred to in SECTION
8.1.5 shall have occurred with respect to any other Indebtedness, without
giving effect to the application, directly or indirectly, of the proceeds
thereof) the following statements shall be true and correct:
(a) the representations and warranties set forth in each Loan Document shall,
in each case, be true and correct 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);
(b) the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans and Swing Line Loans, plus (ii) the aggregate amount of all Letter of
Credit Outstandings, does not exceed the lesser of (x) the then existing
Revolving Loan Commitment Amount and (y) the then applicable Borrowing Base
Amount;
(c) the Borrower and its Subsidiaries shall not hold cash and Cash Equivalent
Investments in an aggregate amount in excess of $10,000,000; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.2.2. CREDIT EXTENSION REQUEST, ETC. Subject to SECTION 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are
being requested, or an Issuance Request if a Letter of Credit is being
requested or extended. Each of the delivery of a Borrowing Request or
Issuance Request and the acceptance by the Borrower of the proceeds of such
Credit Extension shall constitute a representation and warranty by the
Borrower that on the date of such Credit Extension (both immediately before
and after giving effect to such Credit Extension and the application of the
proceeds thereof) the statements made in SECTION 5.2.1 are true and correct
in all material respects.
SECTION 5.2.3. SATISFACTORY LEGAL FORM. All documents executed or submitted
pursuant hereto by or on behalf of any Obligor shall be reasonably
satisfactory in form and substance to the Administrative Agent and its
counsel, and the Administrative Agent and its counsel shall have received
all information, approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into this Agreement and to
make Credit Extensions hereunder, the Borrower represents and warrants to each
Secured Party as set forth in this Article.
SECTION 6.1. ORGANIZATION, POWERS, CAPITALIZATION AND GOOD STANDING.
(a) Organization and Powers. Each of the Obligors is a limited partnership or a
corporation, as applicable, duly formed or incorporated, as applicable,
validly existing and in good standing under the laws of its jurisdiction
of formation or incorporation as applicable (which jurisdiction for each
Obligor in existence as of the Closing Date is set forth on ITEM 6.1(a)
of the Disclosure Schedule). Each of the Obligors has all requisite
partnership or corporate power and authority to own and operate its
properties, to carry on its business as now conducted and proposed to be
conducted, to enter into and perform its obligations under each Related
Transactions Document to which it is a party and to carry out the Related
Transactions.
(b) Capitalization. As of the Closing Date the authorized equity of each of the
Obligors is as set forth on ITEM 6.1(b) of the Disclosure Schedule. As of
the Closing Date, all issued and outstanding Capital Securities of each
of the Obligors are duly authorized and validly issued, fully paid,
nonassessable, free and clear of all Liens other than those in favor of
the Administrative Agent, for the benefit of Secured Parties, and such
Capital Securities were issued in compliance with all applicable state
and federal laws concerning the issuance of securities. As of the Closing
Date the Capital Securities of each of the Obligors are owned by the
Persons and in the amounts set forth in ITEM 6.1(b) of the Disclosure
Schedule. As of the Closing Date no Capital Securities of any Obligor,
other than those described above, are issued and outstanding. As of the
Closing Date there are no preemptive or other outstanding rights,
options, warrants, conversion rights or similar agreements or
understandings for the purchase or acquisition from any Obligor, of any
Capital Securities of any such Obligor.
(c) Binding Obligation. This Agreement is, and the other Related Transactions
Documents heretofore executed and delivered or when executed and
delivered are and will be, the legally valid and binding obligations of
the applicable Obligors thereto, each enforceable against each of such
Obligor, as applicable, in accordance with their respective terms, except
(i) as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent
that availability of the remedy of specific performance or injunctive
relief and other equitable remedies are subject to the discretion of the
court before which any proceeding therefor may be brought, and (ii) that
certain provisions of the Security Documents may be unenforceable in
whole or in part, but the inclusion of such provisions does not affect
the validity of the Security Documents, taken as a whole, and the
Security Documents, taken as a whole contain adequate provisions for
realization of the principal benefits intended to be provided by the
Security Documents subject to
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clause (i) above and to the economic consequences of any delay which may
result from applicable law, rules or judicial decisions.
(d) Qualification. Each of the Obligors is qualified and in good standing
wherever necessary to carry on its business and operations, except in
jurisdictions in which the failure to be qualified and in good standing
could not reasonably be expected to have a Material Adverse Effect. All
jurisdictions in which each Obligor is qualified to do business as of the
Closing Date are set forth on ITEM 6.1(d) of the Disclosure Schedule.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution, delivery
and performance by each Obligor of each Loan Document executed or to be
executed by it and the execution, delivery and performance by the
Borrower or (if applicable) any Obligor of the agreements executed and
delivered by it in connection herewith are in each case within such
Person's powers, have been duly authorized by all necessary action, and
do not
(a) contravene any (i) Obligor's Organic Documents, (ii) or result in a default
under any contractual restriction binding on or affecting any Obligor,
(iii) court decree or order binding on or affecting any Obligor or (iv)
law or governmental regulation binding on or affecting any Obligor; or
(b) result in, or require the creation or imposition of, any Lien on any
Obligor's properties (except as permitted by this Agreement).
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval
or other action by, and no notice to or filing with, any Governmental
Authority or other Person (other than those that have been, or on the
Effective Date will be, duly obtained or made and which are, or on the
Effective Date will be, in full force and effect) is required for the due
execution, delivery or performance by any Obligor of any Loan Document to
which it is a party, or for the continuing operations of the Borrower and
the Subsidiary Guarantors. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION 6.4. INTELLECTUAL PROPERTY. Except as set forth on ITEM 6.4(a) of the
Disclosure Schedule, the Borrower and each of its Subsidiaries owns, is
licensed to use or otherwise has the right to use, all patents,
trademarks, trade names, copyrights, know-how and processes necessary for
the conduct of its business substantially as currently conducted and that
are material to the financial condition or operations of the Borrower and
its Subsidiaries taken as a whole (collectively called "INTELLECTUAL
PROPERTY"). All such Intellectual Property that is federally registered
and owned by the Borrower or its Subsidiaries, as well as material
trademarks, trade names and copyrights, necessary for the conduct of the
business of any such Person and owned by any such Person, is identified
on ITEM 6.4(b) of the Disclosure Schedule (as updated from time to time
by delivery by the Borrower or any of its Subsidiaries of a revised ITEM
6.4(b) of the
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Disclosure Schedule) and all such federally registered property has been
duly and properly registered, filed or issued in the appropriate office
and jurisdictions for such registrations, filings or issuances. Except as
disclosed in ITEM 6.4(c) of the Disclosure Schedule, since the Closing
Date, and to the Borrower's and its Subsidiaries' knowledge prior to the
Closing Date, the use of such Intellectual Property by the Borrower and
its Subsidiaries does not and has not been alleged in writing by any
Person to infringe on the rights of any Person, except to the extent any
such infringement or allegations of infringement could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.5. FINANCIAL STATEMENTS AND PROJECTIONS. All financial statements
concerning the Borrower and its Subsidiaries which have been or will
hereafter be furnished to the Administrative Agent pursuant to this
Agreement, including the consolidated balance sheets of each of the
Borrower and its Subsidiaries, in each case for the Fiscal Year of such
Persons ended August 25, 2001, and the related consolidated statements of
income, stockholders' equity and cash flow for such Fiscal Year, each
audited by Arthur Andersen LLP, have been or will be prepared in
accordance with GAAP and present fairly, in all material respects, the
financial condition of the Persons covered thereby as at the dates
thereof and the results of their operations for the periods then ended,
subject to, in the case of unaudited financial statements, the absence of
year-end adjustments. The Projections delivered on or prior to the
Closing Date and the Projections to be delivered pursuant to CLAUSE (i)
of SECTION 7.1.1 have been and will be prepared in good faith and based
upon reasonable assumptions at the time such Projections were or will be
delivered, it being understood that such Projections do not and will not
constitute a warranty as to the future performance of the Borrower or any
of its Subsidiaries and that actual results may vary from such
Projections.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Since August 25, 2001, there have been
no changes in the financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole which could reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.7. LITIGATION: ADVERSE EFFECTS. Except as set forth on ITEM 6.7 of the
Disclosure Schedule, there are no judgments outstanding against any
Obligor or affecting any property of any Obligor, nor is there any
action, charge, claim, demand, suit, proceeding, petition, governmental
investigation or arbitration now pending or, to the best knowledge of the
Borrower or any of its Subsidiaries after due inquiry, threatened against
or affecting any Obligor or any property of any Obligor which could
reasonably be expected to result in any Material Adverse Effect.
SECTION 6.8. SOLVENCY. Each of the Borrower and CBI, Taylor Holding Co., Taylor
General Partner, Taylor and ECI: (a) owns and will own assets the fair
saleable value of which are (i) greater than the total amount of
liabilities (including Contingent Liabilities) of such Person and (ii)
greater than the amount that will be required to pay the probable
liabilities of such Person's then existing debts as they become absolute
and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (b) has capital that is not
unreasonably small in relation to its business as presently conducted or
after giving effect to any contemplated transaction; and (c) does
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not intend to incur and does not believe that it will incur debts beyond
its ability to pay such debts as they become due.
SECTION 6.9. TAXES. The Borrower and each of its Subsidiaries has filed all tax
returns and reports required by law to have been filed by it and has paid
all Taxes thereby shown to be due and owing, except any such Taxes which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been
set aside on its books.
SECTION 6.10. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM 6.10 of the
Disclosure Schedule:
(a) all facilities and property (including underlying groundwater) owned,
leased or operated by the Borrower or any of its Subsidiaries have been,
and continue to be, owned, leased or operated by the Borrower and its
Subsidiaries in material compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or threatened (i) claims,
complaints, notices or requests for information received by the Borrower
or any of its Subsidiaries with respect to any alleged violation of any
Environmental Law, or (ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential liability under
any Environmental Law, in either case which could reasonably be expected
to have a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or under any
property now or previously owned or leased by the Borrower or any of its
Subsidiaries that have, or could reasonably be expected to have, a
Material Adverse Effect;
(d) the Borrower and its Subsidiaries have been issued and are in material
compliance with all permits, certificates, approvals and licenses
required under Environmental Law;
(e) no property now or previously owned or leased by the Borrower or any of its
Subsidiaries is listed or proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation or
clean-up;
(f) there are no underground or aboveground storage tanks, active or abandoned,
including petroleum underground or aboveground storage tanks, on or under
any property now or previously owned or leased by the Borrower or any of
its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(g) neither the Borrower nor any Subsidiary has directly transported or
directly arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to material claims against
the Borrower or such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
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(h) there are no polychlorinated biphenyls or friable asbestos present at any
property now or previously owned or leased by the Borrower or any
Subsidiary that, singly or in the aggregate, have, or could reasonably be
expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or previously owned or
leased by the Borrower which, with the passage of time, or the giving of
notice or both, would give rise to material liability under any
Environmental Law.
SECTION 6.11. DISCLOSURE. No representation or warranty of any Obligor contained
in this Agreement, the financial statements (other than the Projections)
referred to in CLAUSE (a) of SECTION 5.1.6, the other Loan Documents or
any other document, certificate or written statement furnished to the
Administrative Agent or any Lender by or on behalf of an Obligor for use
in connection with the Loan Documents contains as of the date of such
representation, warranty, document, certificate or written statement was
so furnished any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained
herein or therein not misleading, in each case in light of the
circumstances in which the same were made.
SECTION 6.12. USE OF PROCEEDS: Margin Regulations. Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of the Regulation
U or X of the Board of Governors of the Federal Reserve System) and no
part of the proceeds of any Loan will be used to acquire any margin
stock.
SECTION 6.13. CBI SENIOR SUBORDINATED NOTES. The consummation of the Related
Transactions will not violate, conflict with or result in a breach of any
provision of the CBI Indenture. No Indebtedness, other than the
Obligations, has been designated as "Designated Senior Indebtedness"
under the CBI Indenture and except for an amendment thereto on July 27,
2000 the CBI Indenture has not been amended or otherwise modified. None
of the Related Transactions, either individually or collectively,
constitutes an "Asset Sale" or a "Change of Control" under the CBI
Indenture. The Subsidiary Guaranty as it relates to CBI falls within the
definition of the term "Bank Credit Facility" as set forth in the CBI
Indenture and the Obligations owing under the Subsidiary Guaranty as it
relates to CBI constitute "Designated Senior Indebtedness" as set forth
in the CBI Indenture. Aside from that certain Guaranty issued by Taylor
Holding Co. on or about March 19, 2001 to all of the holders of the CBI
Senior Subordinated Notes, no additional consideration was given to
Angelo, Gordon & Co., L.P. to induce it to enter into that certain
agreement dated March 19, 2001 between Angelo, Gordon & Co., L.P. and
CBI. The Borrower acknowledges that the Administrative Agent, each Lender
and each Issuer is entering into this Agreement and is extending its
Commitments in reliance upon the subordination provisions of the CBI
Indenture.
SECTION 6.14. NO DEFAULT. The consummation of the Related Transactions by the
Obligors does not and will not violate or conflict with any laws, rules,
regulations or orders of any governmental authority or violate, conflict
with, result in a breach of, or constitute a default (with due notice or
lapse of time or both) under any Contractual Obligation or any
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Obligor except if such violations, conflicts, breaches or defaults have
either been waived on or before the Closing Date or could not reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect.
SECTION 6.15. INVESTIGATIONS, AUDITS, ETC. Except as set forth on ITEM 6.15 of
the Disclosure Schedule, as of the Closing Date neither Borrower nor any
of its Subsidiaries, is the subject of any review or audit by the
Internal Revenue Service or any governmental investigation concerning the
violation or possible violation of any law that may reasonably be
expected to have a Material Adverse Effect.
SECTION 6.16. EMPLOYEE MATTERS. Except as set forth on ITEM 6.16 of the
Disclosure Schedule, as of the Closing Date (a) no Obligor nor any of
their respective employees is subject to any collective bargaining
agreement, (b) no petition for certification or union election is pending
with respect to the employees of any Obligor and no union or collective
bargaining unit has sought such certification or recognition with respect
to the employees of any Obligor and (c) there are no strikes, slowdowns,
work stoppages or controversies pending or, to the best knowledge of the
Borrower or any of its Subsidiaries after due inquiry, threatened between
any Obligor and its respective employees, other than employee grievances
arising in the ordinary course of business which could not reasonably be
expected to have a Material Adverse Effect. Except as set forth on ITEM
6.16 of the Disclosure Schedule, as of the Closing Date neither the
Borrower nor any of its Subsidiaries is party to an employment contract
that provides for annual payments after the date hereof in excess of
$150,000.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Borrower agrees with each Lender, each
Issuer and the Administrative Agent that until the Termination Date has
occurred, the Borrower will, and will cause its Subsidiaries to, perform
or cause to be performed the obligations set forth below.
SECTION 7.1.1. FINANCIAL STATEMENTS AND OTHER REPORTS. The Borrower will
maintain, and cause each of its Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in conformity
with GAAP (it being understood that monthly financial statements are
subject to normal year-end adjustments and are not required to have
footnote disclosures). The Borrower will deliver each of the financial
statements and other reports described below to the Administrative Agent
(and each Lender in the case of the financial statements and other
reports described in CLAUSES (a), (b), (c), (e), (g), (i), (j) and (k)).
(a) QUARTERLY FINANCIALS. As soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters, the Borrower
will deliver unaudited consolidated and consolidating balance sheets and
income statements of the Borrower and its Subsidiaries as of the end of
such Fiscal Quarter and consolidated cash flow statements of the Borrower
and its Subsidiaries for such Fiscal Quarter and for the period
commencing
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at the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter, and including (in each case) in comparative form the
figures for the corresponding Fiscal Quarter in, and year to date portion
of, the immediately preceding Fiscal Year and to the most recently
delivered annual budget, certified as complete and correct by the chief
financial or accounting Authorized Officer of the Borrower.
(b) YEAR-END FINANCIALS. As soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, the Borrower will deliver
(i) the consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such Fiscal Year, and the related consolidated
statements of income, stockholders' equity and cash flow for such Fiscal
Year, (ii) a schedule of the outstanding Indebtedness for borrowed money
of the Borrower and its Subsidiaries describing in reasonable detail each
such debt issue or loan outstanding and the principal amount and amount
of accrued and unpaid interest with respect to each such debt issue or
loan and (iii) a report with respect to the consolidated financial
statements of the Borrower and its Subsidiaries from a firm of certified
public accountants selected by the Borrower and reasonably acceptable to
the Administrative Agent, which report shall be prepared in accordance
with Statement of Auditing Standards No. 58 entitled "Reports on Audited
Financial Statements" and such report shall be without (x) a "going
concern" or like qualification or exception, (y) any qualification or
exception as to the scope of such audit or (z) any qualification which
relates to the treatment or classification of any item and which, as a
condition to the removal of such qualification, would require an
adjustment to such item, the effect of which would be to cause the
Borrower to be in default of any of its obligations under SECTION 7.2.4
or SECTION 7.2.7.
(c) COMPLIANCE CERTIFICATE. Together with each delivery of financial statements
of the Borrower and its Subsidiaries pursuant to CLAUSES (a) and (b), the
Borrower will deliver a fully and properly completed Compliance
Certificate (in substantially the same form as EXHIBIT E) signed by the
chief executive Authorized Officer, chief financial Authorized Officer,
or treasurer of the Borrower.
(d) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, the Borrower will
deliver copies of all significant reports submitted by the Borrower's
firm of certified public accountants in connection with each annual,
interim or special audit or review of any type of the financial
statements or related internal control systems of the Borrower made by
such accountants, including any comment letter submitted by such
accountants to management in connection with their services.
(e) BORROWING BASE CERTIFICATE. As soon as available and in any event within
ten (10) Business Days after the end of each month, and from time to time
upon the request of the Administrative Agent after the occurrence and
during the continuation of any Event of Default, the Borrower will
deliver a Borrowing Base Certificate (in substantially the same form as
EXHIBIT B-3) as at the last day of such period.
(f) MANAGEMENT REPORT. Together with each delivery of financial statements
pursuant to CLAUSES (a) and (b), the Borrower will deliver a management
report (i) describing the operations and financial condition of the
Borrower and its Subsidiaries for the month then ended and
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the portion of the current Fiscal Year then elapsed (or for the Fiscal
Year then ended in the case of year-end financials), (ii) setting forth
in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year and the corresponding figures from
the most recent Projections for the current Fiscal Year delivered
pursuant to CLAUSE (i) and (iii) discussing the reasons for any
significant variations.
(g) COLLATERAL VALUE REPORT. Upon the request of the Administrative Agent,
which may be made not more than once each year prior to an Event of
Default (and prior to an Event of Default, the Borrower shall not be
liable for costs, fees and expenses incurred by the Administrative Agent
and the Lenders in excess of $30,000 during any eighteen (18) month
period in connection with any collateral value report required pursuant
to this CLAUSE (g)) and at any time (but not more often than quarterly)
while and so long as an Event of Default shall be continuing, the
Borrower will obtain and deliver to the Administrative Agent a report of
an independent collateral auditor satisfactory to the Administrative
Agent (which may be, or be affiliated with, a Lender) with respect to the
Eligible Accounts and Eligible Inventory components included in the
Borrowing Base Amount, which report shall indicate whether or not the
information set forth in the Borrowing Base Certificate most recently
delivered is accurate and complete in all material respects based upon a
review by such auditors of the Eligible Accounts (including verification
with respect to the amount, aging, identity and credit of the respective
account debtors and the billing practices of the Borrower) and Eligible
Inventory (including verification as to the value, location and
respective types).
(h) APPRAISALS. From time to time, if the Administrative Agent or any
Lender determines that obtaining appraisals is necessary in order for the
Administrative Agent or such Lender to comply with applicable laws or
regulations, the Administrative Agent will, at the Borrower's expense,
obtain appraisal reports in form and substance and from appraisers
reasonably satisfactory to the Administrative Agent stating the then
current fair market values of all or any portion of the real estate owned
by the Borrower or any of its Subsidiaries.
(i) PROJECTIONS. As soon as available and in any event no later than 45 days
after the last day of each Fiscal Year, the Borrower will deliver
Projections of the Borrower and its Subsidiaries for the forthcoming
Fiscal Year, month by month.
(j) SEC FILINGS AND PRESS RELEASES. Promptly upon their becoming available, the
Borrower will deliver copies of (i) all financial statements, reports,
notices and proxy statements sent or made available by the Borrower or
any of its Subsidiaries to its security holders, (ii) all regular and
periodic reports and all registration statements and prospectuses, if
any, filed by the Borrower or any of its Subsidiaries with any securities
exchange or with the SEC, or any material reports, statements and
prospectuses, if any, filed with any other governmental or private
regulatory authority and (iii) all material press releases.
(k) EVENTS OF DEFAULT, ETC. Promptly upon any officer of the Borrower obtaining
actual knowledge of any of the following events or conditions, the
Borrower shall deliver copies of all notices given or received by the
Borrower with respect to any such event or condition and a certificate of
the Borrower's chief executive Authorized Officer
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specifying the nature and period of existence of such event or condition
and what action the Borrower has taken, is taking and proposes to take
with respect thereto: (i) any condition or event that constitutes an
Event of Default; (ii) any notice that any Person has given to the
Borrower or any of its Subsidiaries or any other action taken, in each
case with respect to a claimed Default or event or condition of the type
referred to in SECTION 8.1.5; or (iii) any event or condition that could
reasonably be expected to result in any Material Adverse Effect.
(l) LITIGATION. Promptly upon any officer of the Borrower obtaining actual
knowledge of (i) the institution of any action, suit, proceeding,
governmental investigation or arbitration against or affecting any
Obligor or any property of any Obligor not previously disclosed by the
Borrower to the Administrative Agent or (ii) any material order is
entered in any action, suit, proceeding, governmental investigation or
arbitration at any time pending against or affecting any Obligor or any
property of any Obligor which, in each case, could reasonably be expected
to have a Material Adverse Effect, the Borrower will promptly give notice
thereof to the Administrative Agent and provide such other information as
may be reasonably available to it (except to the extent such information
is protected by attorney-client privilege) to enable the Administrative
Agent and its counsel to evaluate such matter.
(m) NOTICE OF CORPORATE AND OTHER CHANGES. The Borrower shall provide prompt
written notice of (i) any material change after the Closing Date in the
authorized and issued Capital Securities of any Obligor or any of their
respective Subsidiaries or any other material amendment to their Organic
Documents, and (ii) any Subsidiary created or acquired by any Obligor
after the Closing Date, such notice, in each case, to identify the
applicable jurisdictions, capital structures or Subsidiaries, as
applicable.
(n) OTHER INFORMATION. With reasonable promptness, the Borrower will deliver
such other information and data with respect to any Obligor or any
Subsidiary of any Obligor as from time to time may be reasonably
requested by the Administrative Agent.
SECTION 7.1.2. COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS. The Borrower
will (a) comply with and will cause each of its Subsidiaries to comply
with (i) the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including laws, rules, regulations
and orders relating to taxes, employer and employee contributions,
securities, employee retirement and welfare benefits, environmental
protection matters and employee health and safety) as now in effect and
which may be imposed in the future in all jurisdictions in which the
Borrower or its Subsidiaries are now doing business or may hereafter be
doing business and (ii) the obligations, covenants and conditions
contained in all Contractual Obligations of the Borrower or such
Subsidiary, as applicable, other than those laws, rules, regulations,
orders and provisions of such Contractual Obligations the noncompliance
with which could not be reasonably expected to have, either individually
or in the aggregate, a Material Adverse Effect, and (b) maintain or
obtain and will cause each of its Subsidiaries to maintain or obtain, all
licenses, qualifications and permits now held or hereafter required to be
held by the Borrower or any of its Subsidiaries, for which the loss,
suspension, revocation or failure to obtain or renew, could reasonably be
expected to have a Material Adverse Effect. This
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Section shall not preclude the Borrower or any Subsidiary from contesting
any taxes or other payments, if they are being diligently contested in
good faith in a manner which stays enforcement thereof and if appropriate
expense provisions have been recorded in conformity with GAAP. The
Borrower represents and warrants that as of the date hereof, it (i) is in
compliance and each of its Subsidiaries is in compliance with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority other than those laws, rules, regulations, orders
and provisions of such Contractual Obligations, the noncompliance with
which could not be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect and (ii) maintains and each of
its Subsidiaries maintains all licenses, qualifications and permits
referred to above, except where a failure to do so could not be
reasonably expected to have a Material Adverse Effect.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and will
cause its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition (ordinary wear and tear and casualty
events excepted) all material properties used in the business of the
Borrower and its Subsidiaries and will make or cause to be made all
repairs, renewals and replacements thereof as in the reasonable judgment
of the Borrower are necessary to carry on their business. The Borrower
will, and will cause its Subsidiaries to, maintain or cause to be
maintained, with financially sound and reputable insurers, public
liability and property damage insurance with respect to its business and
properties and the business and properties of its Subsidiaries against
loss or damage of the kinds, and in the amounts, customarily carried or
maintained by corporations of established reputation engaged in similar
activities in similar geographic locations and will deliver evidence
thereof to the Administrative Agent. The Borrower will, and will cause
its Subsidiaries to, also maintain (i) business interruption insurance
providing coverage for a period of at least six months and in an amount
not less than (x) $6,000,000 for Taylor General Partner and Taylor, (y)
$25,000,000 for CBI and (z) $2,000,000 for ECI and (ii) the environmental
insurance in effect on the Closing Date and described on ITEM 7.1.3 of
the Disclosure Schedule (the Administrative Agent and the Lenders
acknowledge that such environmental insurance satisfies the requirements
for environmental insurance set forth in this Section). The Borrower
will, and will cause its Subsidiaries to, cause the Administrative Agent,
pursuant to endorsements and/or assignments in form and substance
reasonably satisfactory to the Administrative Agent, to be named (x) as
lender's loss payee, with respect to all claims at any time in the
aggregate in excess of $100,000 (which such loss payee provision shall
name the Borrower and the applicable Subsidiary, and the Administrative
Agent jointly as loss payees), in the case of property insurance, (y)
additional insured in the case of all liability insurance and (z)
assignee/loss payee, with respect to all claims at any time in the
aggregate in excess of $100,000 (which such assignee/loss payee provision
shall name the Borrower and the applicable Subsidiary, and the
Administrative Agent jointly as assignees/loss payees), in the case of
all business interruption insurance, in each case for the benefit of the
Secured Parties. The Borrower represents and warrants that it and each of
its Subsidiaries currently maintains all material properties as set forth
above and maintains all insurance described above. In the event that the
Borrower or a Subsidiary fails to provide the Administrative Agent with
evidence of the insurance coverage required by this Agreement promptly
after the Administrative Agent requests in writing
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such evidence, the Administrative Agent may purchase insurance at the
Borrower's expense to protect the Administrative Agent's interests in the
Collateral. This insurance may, but need not, protect the Borrower's
interests. The coverage purchased by the Administrative Agent may not pay
any claim made by the Borrower or any Subsidiary or any claim that is
made against the Borrower or any Subsidiary in connection with the
Collateral. The Borrower may later cancel any insurance purchased by the
Administrative Agent, but only after providing the Administrative Agent
with evidence that the Borrower has obtained insurance as required by
this Agreement. If the Administrative Agent purchases insurance for the
Collateral, the Borrower will be responsible for the costs of that
insurance, including interest and other charges imposed by the
Administrative Agent in connection with the placement of the insurance,
until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to the Obligations.
The costs of the insurance may be more than the cost of insurance the
Borrower or its Subsidiaries are able to obtain on their own.
SECTION 7.1.4. INSPECTION; LENDER MEETING. The Borrower shall, and cause each
U.S. Subsidiary to, permit any authorized representatives of the
Administrative Agent to visit and inspect any of the properties of the
Borrower or any of such Subsidiaries, including its and their financial
and accounting records, and to make copies and take extracts therefrom,
other than materials that are protected by attorney-client privilege and
materials the Borrower or its Subsidiary may not disclose to the
Administrative Agent or any Lender under confidentiality agreements and
to discuss its and their affairs, finances and business with its and
their officers and certified public accountants, at such reasonable times
during normal business hours, as often as may be reasonably requested,
upon reasonable prior notice and so long as such visit and inspection
does not materially interfere with the business and the operations of the
Borrower and its Subsidiaries taken as a whole; provided that prior to
the occurrence and continuance of an Event of Default, the Borrower or
such Subsidiary shall not be required to permit more than three (3) such
visits and inspections during any year. Upon at least twenty-four (24)
hours prior notice to the Borrower, representatives of each Lender will
be permitted to accompany representatives of the Administrative Agent
during each visit, inspection and discussion referred to in the
immediately preceding sentence. Without in any way limiting the
foregoing, the Borrower will, and cause each U.S. Subsidiary to,
participate and will cause its key management personnel to participate in
a meeting with the Administrative Agent and the Lenders at least once
during each year, which meeting shall be held at such time and such place
as may be reasonably requested by the Administrative Agent. At no time
does this Agreement provide the Lenders or the Administrative Agent the
authority to conduct or cause the Borrower to conduct any subsurface
investigation, except to the extent required under Environmental Law or
in fulfillment of an express requirement of a Governmental Authority.
SECTION 7.1.5. CORPORATE/LIMITED PARTNERSHIP EXISTENCE. Except as otherwise
permitted by SECTION 7.2.10, the Borrower will, and will cause each of
its Subsidiaries to, preserve and keep in full force and effect its
corporate existence (or in the case of Taylor, its limited partnership
existence) and all rights and corporate/limited partnership franchises
material to its business.
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SECTION 7.1.6. ENVIRONMENTAL LAW COVENANT. The Borrower will, and will cause
each of its Subsidiaries to,
(a) use and operate all of its and their facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates and licenses required under Environmental Law and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable Environmental Laws;
and
(b) notify the Administrative Agent within fourteen (14) days and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in
respect of, or as to compliance with, Environmental Laws, and shall use
its best efforts to resolve any non-compliance with Environmental Laws
and keep its property free of any Lien imposed by any Environmental Law,
except to the extent such non-compliance could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 7.1.7. USE OF PROCEEDS. The Borrower will apply the proceeds of the
Credit Extensions as follows:
(a) to repay the Indebtedness identified in ITEM 7.2.2(h) of the Disclosure
Schedule (including Indebtedness under the Existing Credit Agreement, the
Existing Promissory Notes, and the Swap Amounts) and fees and expenses
related to the Refinancing;
(b) for working capital and general corporate purposes of the Borrower and the
Subsidiary Guarantors, including Permitted Acquisitions by such Persons;
and
(c) for issuing Letters of Credit for the account of the Borrower and the
Subsidiary Guarantors.
SECTION 7.1.8. FURTHER ASSURANCES.
(a) The Borrower shall, and shall cause each Obligor to, from time to time,
execute such financing statements, documents, security agreements and
reports as the Administrative Agent or the Required Lenders at any time
may reasonably request to evidence, perfect or otherwise implement the
guaranties and security for repayment of the Obligations contemplated by
the Loan Documents.
(b) In the event that the Borrower or any Subsidiary thereof (other than the
Mexican Subsidiary) acquires a fee interest in any real property after
the Closing Date, the Borrower shall, and shall cause each such
Subsidiary to, deliver to the Administrative Agent a fully executed
mortgage or deed of trust over such real property in form and substance
reasonably satisfactory to the Administrative Agent, together with such
title insurance policies, surveys, appraisals, evidence of insurance,
legal opinions, environmental assessments and other documents and
certificates as shall be reasonably required by the Administrative Agent
and are consistent with the requirements imposed with respect to real
property interests of the Borrower and its Subsidiaries at the Closing
Date. In the event that the Borrower or any Subsidiary thereof (other
than the Mexican Subsidiary) acquires a leasehold interest in any real
property after the Closing Date, at the request of the Administrative
Agent and if and to the extent permitted and/or consented to by the
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landlord under the lease or sublease under which such interest is
conveyed, the Borrower shall or shall cause each such Subsidiary to
deliver to the Administrative Agent a fully executed leasehold mortgage
or deed of trust over such leasehold estate in form and substance
reasonably satisfactory to the Administrative Agent, together with any of
those items, documents or certificates listed in the preceding sentence
that the Administrative Agent may reasonably require with respect to any
real property owned in fee by the Borrower or its Subsidiary, and which
are consistent with the requirements imposed by the Administrative Agent
with respect to real property interests of the Borrower and its
Subsidiaries at the Closing Date.
(c) At the Administrative Agent's or the Required Lenders' request, the
Borrower shall cause (x) each Subsidiary (other than the Mexican
Subsidiary) promptly to guaranty the Obligations and to grant to the
Administrative Agent, for the benefit of the Secured Parties, a Lien on
substantially all of the real, personal and mixed property of such
Subsidiary to secure the Obligations (except as otherwise expressly
provided herein) and (y) the Capital Securities of each Subsidiary (other
than the Mexican Subsidiary) of the Borrower promptly to be pledged to
the Administrative Agent, for the ratable benefit of the Secured Parties,
to secure the Obligations. The documentation for such guaranty, security
or pledge shall be substantially similar to the Loan Documents executed
concurrently herewith with such modifications as are reasonably requested
by the Administrative Agent.
SECTION 7.1.9. LANDLORD ESTOPPEL LETTERS. The Borrower shall use its best
efforts to have the lessors of the property located at each of 67 Great
Valley Parkway, Malvern, Pennsylvania, and at 7101 Intermodal Drive,
Louisville, Kentucky, execute and deliver to the Administrative Agent
within 45 days following the Closing Date an estoppel letter (with
respect to the leases for such property) in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7.1.10. TITLE INSURANCE. The Borrower shall deliver to the
Administrative Agent within 30 days following the Closing Date,
mortgagee's title insurance policies in favor of the Administrative Agent
for the benefit of the Secured Parties in amounts and in form and
substance and issued by insurers, satisfactory to the Administrative
Agent, with respect to the property purported to be covered by each
Mortgage, insuring that title to such property is marketable and that the
interests created by each Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances other than as approved by
the Administrative Agent, and such policies shall also include a current
survey reading, and, if required by the Administrative Agent and if
available, revolving credit endorsement, comprehensive endorsement,
variable rate endorsement, access and utilities endorsements, mechanic's
lien endorsement and such other endorsements as the Administrative Agent
shall reasonably request and shall be accompanied by evidence of the
payment in full of all premiums thereon.
SECTION 7.2. NEGATIVE COVENANTS. The Borrower covenants and agrees with each
Lender, each Issuer and the Administrative Agent that until the
Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set
forth below.
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SECTION 7.2.1. CONDUCT OF BUSINESS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, directly or indirectly engage in any
business other than the respective businesses of the type described on
ITEM 7.2.1 of the Disclosure Schedule with respect to each such Person or
are reasonably related thereto. Taylor Holding Co. will not engage in any
type of business activity other than (i) the ownership of 1% of the
Capital Securities of Taylor, (ii) the ownership of the CBI Subordinated
Notes owned by it as of the Closing Date and (iii) the performance of its
obligations under the Loan Documents to which it is a party, except as
otherwise permitted hereunder.
SECTION 7.2.2. INDEBTEDNESS. The Borrower will not, nor will the Borrower permit
any of its Subsidiaries directly or indirectly to, create, incur, assume,
or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness except:
(a) the Obligations;
(b) unsecured Indebtedness of the Borrower evidenced by the Senior Unsecured
Notes in a principal amount not to exceed $177,000,000, and unsecured
guarantees of such Indebtedness delivered by Subsidiary Guarantors;
(c) Indebtedness of any Subsidiary (other than Taylor Holding Co.) owing to the
Borrower or any other Subsidiary, which Indebtedness
(i) shall, if payable to the Borrower or a Subsidiary Guarantor (and not
incurred under CLAUSE (g)), be evidenced by one or more promissory notes
in form and substance satisfactory to the Administrative Agent, duly
executed and delivered in pledge to the Administrative Agent pursuant to
a Loan Document, and (unless otherwise agreed to by the Administrative
Agent) shall not be forgiven or otherwise discharged for any
consideration other than payment in full or in part in cash (PROVIDED,
that only the amount repaid in part shall be discharged); and
(ii) if incurred by a Foreign Subsidiary owing to the Borrower or a Subsidiary
Guarantor, shall not (when aggregated with (i) the amount of Investments
made by the Borrower and the Subsidiary Guarantors in Foreign
Subsidiaries under CLAUSE (r) of SECTION 7.2.5 and (ii) the amount of
Dispositions made by the Borrower and the Subsidiary Guarantors to
Foreign Subsidiaries pursuant to CLAUSE (m) of SECTION 7.2.11) exceed
$5,000,000 at any time;
(d) unsecured Indebtedness (not evidenced by a note or other instrument) of the
Borrower owing to a Subsidiary (other than Taylor Holding Co.), provided
such Subsidiary has previously executed and delivered to the
Administrative Agent the Interco Subordination Agreement;
(e) Indebtedness of the Borrower and its Subsidiaries (other than Taylor
Holding Co.) secured by Liens permitted by CLAUSES (e) or (k) of SECTION
7.2.3; PROVIDED, that the Indebtedness is incurred within 60 days
following the acquisition of the property subject to such Lien and the
aggregate amount of such Indebtedness shall not exceed $10,000,000 at any
one time outstanding;
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(f) Indebtedness of CBI evidenced by the CBI Senior Subordinated Notes;
PROVIDED that not less than 51% of the aggregate outstanding principal
amount of such CBI Senior Subordinated Notes shall be owing only to
Taylor Holding Co. until such time, if any, that CBI retires, cancels or
otherwise terminates the Senior Subordinated Notes owing to Taylor
Holding Co.;
(g) intercompany Indebtedness, constituting accounts payable, owing by one
Subsidiary to another Subsidiary, for services rendered in the ordinary
course of business by one Subsidiary to another Subsidiary reflecting
reimbursements for services which are rendered to such Subsidiary (the
"SHARED SERVICES") with the allocable costs thereof being reimbursed to
the Subsidiary which paid for such Shared Services;
(h) Indebtedness outstanding on the date hereof and listed on ITEM 7.2.2(H) of
the Disclosure Schedule and refinancing of such Indebtedness in a
principal amount not in excess of that which is outstanding on the
Effective Date (as such amount has been reduced following the Effective
Date);
(i) unsecured Indebtedness incurred to repurchase equity issued by the Borrower
to employees, consultants, agents, officers and directors of the Borrower
or its Subsidiaries, to the extent such repurchase is permitted by CLAUSE
(a) of SECTION 7.2.6;
(j) unsecured Indebtedness (referred to as "SELLER NOTE INDEBTEDNESS") which is
subordinated to the Obligations in a manner, and has terms and conditions
(including as to its maturity), satisfactory to the Required Lenders and
which is incurred in connection with the consummation of any Permitted
Acquisition and which is owing to a seller of the Capital Securities or
assets sold pursuant to such Permitted Acquisition;
(k) Contingent Liabilities incurred by any Person to the extent such Person is
permitted to incur such Contingent Liabilities pursuant to SECTION 7.2.8;
and
(l) additional Indebtedness (other than Indebtedness of Foreign Subsidiaries
owing to the Borrower or Subsidiary Guarantors) of the Borrower and its
Subsidiaries (other than Taylor Holding Co.) not contemplated by CLAUSES
(a) through (k) above, provided that the aggregate principal amount of
Indebtedness incurred and remaining outstanding pursuant to this clause
shall not at any time exceed $10,000,000.
PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSES (e), (i)
or (L) shall be assumed, created or otherwise incurred if a Default has occurred
and is then continuing or would result therefrom.
SECTION 7.2.3. LIENS AND RELATED MATTERS. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries directly or indirectly to,
create, incur, assume or permit to exist any Lien on or with respect to
any property or asset of the Borrower or any of its Subsidiaries, whether
now owned or hereafter acquired, or any income or profits therefrom,
except Permitted Encumbrances. "PERMITTED ENCUMBRANCES" means the
following:
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(a) Liens for taxes, assessments or other governmental charges in respect of
obligations not yet due and payable or which are being contested in good
faith by appropriate proceedings and for which appropriate reserves have
been established in accordance with GAAP;
(b) (i) statutory Liens of landlord, carriers, warehousemen, mechanics,
materialmen and other similar liens imposed by law; and (ii) consensual
Liens granted to carriers, warehousemen which at no time will store
inventory of the Obligors having a value in excess of $2,500,000,
mechanics and materialmen; which in all such cases (whether pursuant to
CLAUSE (b)(i) or (b)(ii) above) are incurred in the ordinary course of
business for sums not more than sixty (60) days delinquent or which are
being diligently contested in good faith and by appropriate proceedings
in a manner which stays enforcement of such Liens;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in
the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety, stay, customs
and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(d) deposits, in an aggregate amount not to exceed $1,000,000 for the Borrower
and its Subsidiaries, made in the ordinary course of business to secure
liability to insurance carriers;
(e) Liens for purchase money obligations and capital leases; PROVIDED, that:
(i) purchase of the asset subject to any such Lien is permitted under
SECTION 7.2.7; (ii) the Indebtedness secured by any such Lien is
permitted under SECTION 7.2.2; and (iii) any such Lien encumbers only the
asset so purchased (and improvements, replacements, substitutions,
accessions and additions thereto);
(f) any attachment or judgment Lien not constituting an Event of Default under
SECTION 8.1.6;
(g) easements, rights of way, zoning restrictions, restrictions, covenants, and
other similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of the Borrower or any
of its Subsidiaries;
(h) any interest or title of a lessor or sublessor under any lease or of a
licensor or sublicensor under a license or sublicense;
(i) Liens in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the other Secured Parties;
(j) Liens existing on the date hereof and renewals and extensions thereof,
which Liens are set forth on ITEM 7.2.3(j) of the Disclosure Schedule;
(k) Liens existing on any property or asset of any Person at the time of
acquisition thereof or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof in connection with the
consummation of a Permitted Acquisition at the time such
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Person becomes a Subsidiary; PROVIDED, that (i) such Lien is not created
in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any of its
Subsidiaries (other than improvements, replacements, substitutions
accessions and additions to the property or asset subject to such Lien),
and (iii) such Lien in the Administrative Agent's determination, does not
secure all or substantially all of, and is not a "blanket lien" on, the
assets of such Person and in any event shall secure only those
obligations that it secures on the date of acquisition or the date such
Person becomes a Subsidiary and such obligations are permitted hereunder;
(l) Liens in replacement of Liens described in CLAUSES (e), (j) and (k);
PROVIDED, that such replacement Liens do not extend to any assets not
subject to the Lien being replaced;
(m) consignments of inventory by a Subsidiary entered into in the ordinary
course of business consistent with past practices as in effect on the
Closing Date;
(n) leases, subleases, licenses and sublicenses of property permitted by CLAUSE
(b) of SECTION 7.2.11;
(o) ownership interests of Persons who consign Gold to CBI in the ordinary
course of business; PROVIDED, that the interests of such Persons are
limited to such consigned Gold;
(p) Liens in favor of Scotia Capital on the "Collateral", as such term is
defined in the Gold Consignment Agreement and under the Security
Documents;
(q) Liens in favor of Persons who refine Gold for CBI, in the ordinary course
of business of CBI and consistent with past practices of CBI as in effect
on the Closing Date, on Gold owned by CBI; and
(r) Liens and encumbrances on each parcel or property mortgaged in favor of the
Administrative Agent (on behalf of the Secured Parties) as and to the
extent permitted by the mortgage or deed of trust applicable thereto.
SECTION 7.2.4. FINANCIAL CONDITION AND OPERATIONS. The Borrower will not permit
any of the events set forth below to occur.
(a) The Borrower will not permit the Secured Leverage Ratio at any time to be
greater than 1:1.
(b) The Borrower will not permit the Fixed Charge Coverage Ratio as of the last
day of any Fiscal Quarter occurring during any period set forth below to
be less than the ratio set forth opposite such period:
<Table>
<Caption>
Fixed Charge
Period Coverage Ratio
------ --------------
Closing Date through (and including) 08/31/02 1.10:1.00
09/01/02 through (and including) 08/30/03 1.15:1.00
</Table>
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<Table>
<Caption>
Fixed Charge
Period Coverage Ratio
------ --------------
08/31/03 and thereafter 1.20:1.00
</Table>
(c) The Borrower will not permit the Interest Coverage Ratio as of the last day
6 of any Fiscal Quarter occurring during any period set forth below to be
less than the ratio set forth opposite such period:
<Table>
<Caption>
Interest
Period Coverage Ratio
------ --------------
Closing Date through (and including) 08/31/02 1.60:1.00
09/01/02 through (and including) 08/30/03 1.65:1.00
08/31/03 and thereafter 1.75:1.00
</Table>
SECTION 7.2.5. INVESTMENTS; JOINT VENTURES. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries directly or indirectly to, make
or own any Investment in any Person except:
(a) the Borrower and its Subsidiaries may make and own
Investments in Cash Equivalent Investments; PROVIDED, that such Cash
Equivalent Investments are not subject to setoff rights (other than in
favor of a Secured Party); PROVIDED further that, to the extent any Loans
are outstanding, the aggregate amount of cash and Cash Equivalent
Investments held by the Borrower and its Subsidiaries shall not exceed
$10,000,000 for any period of three consecutive Business Days;
(b) intercompany loans permitted by CLAUSES (c), () and (G) of
SECTION 7.2.2;
(c) capital contributions made by (i) the Borrower in Subsidiary
Guarantors (other than Taylor Holding Co.), (ii) Subsidiary Guarantors in
other Subsidiary Guarantors (other than Taylor Holding Co.) and (iii)
Subsidiary Guarantors in the Borrower;
(d) the Borrower and its Subsidiaries (other than Taylor Holding
Co.) may make Investments to consummate a Permitted Acquisition;
(e) the Borrower and its Subsidiaries may make loans and advances
to employees for moving, entertainment, travel, relocation and other
similar expenses in the ordinary course of business not to exceed
$1,000,000 (MINUS the aggregate amount of Contingent Liabilities incurred
in accordance with CLAUSE (i) of SECTION 7.2.8) in the aggregate at any
time outstanding;
(f) Investments constituting Capital Expenditures to the extent
permitted by the terms of this Agreement;
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(g) Investments consisting of the extension of trade credit by
the Borrower or any of its Subsidiaries made in the ordinary course of
business;
(h) Investments consisting of advances to sales representatives
in the ordinary course of business and in a manner consistent with past
practices of the Borrower and its Subsidiaries;
(i) Investments made in exchange for accounts receivable of the
Borrower or any of its Subsidiaries arising in the ordinary course of
business which are, in the good faith judgment of such Person,
substantially uncollectible;
(j) Investments (including debt obligations, Capital Securities
or other property) to the extent received from another Person by the
Borrower or any of its Subsidiaries in connection with (i) any
bankruptcy, reorganization, composition, readjustment of debt or workout
of any supplier or customer of any such Person in settlement of
delinquent obligations of, and other disputes with, such suppliers or
customers and (ii) the satisfaction or enforcement of indebtedness or
claims due or owing to the Borrower or any of its Subsidiaries or as
security for any such indebtedness or claim, in each case arising in the
ordinary course of business;
(k) Investments existing on the date hereof and set forth on ITEM
7.2.5(k) of the Disclosure Schedule and all extensions or renewals of
such existing Investments on substantially similar terms;
(l) Contingent Liabilities permitted by SECTION 7.2.8;
(m) Investments consisting of promissory notes and other noncash
consideration received as proceeds of Asset Dispositions permitted by
SECTION 7.2.11;
(n) Investments consisting of acceptance and endorsements of
checks or other negotiable instruments for deposit or collection in the
ordinary course of business;
(o) Investments in performance, bid or advance payment bonds and
insurance contracts to the extent not prohibited by this Agreement and in
a manner consistent with past practices (as in effect on the Closing
Date) of the Borrower and its Subsidiaries;
(p) Investments consistent with past practices (as in effect on
the Closing Date) of the Borrower and its Subsidiaries consisting of
guaranties of Indebtedness of, or loans or advances to, sales
representatives of such Obligors to finance the acquisition of sales
territories from former sales representatives of such Obligors to the
extent that the aggregate amount of such Investments shall not exceed
$5,000,000 at any time outstanding;
(q) Investments made pursuant to CLAUSE (a) of SECTION 7.2.6;
(r) Investments made by the Borrower and/or Subsidiary Guarantors
in Foreign Subsidiaries; PROVIDED, that the amount of such Investments,
when aggregated with (i) the amount of intercompany Indebtedness owed by
Foreign Subsidiaries to the
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Borrower and the Subsidiary Guarantors pursuant to CLAUSE (c)(ii) of
SECTION 7.2.2 and (ii) the amount of Dispositions made by the Borrower
and the Subsidiary Guarantors to Foreign Subsidiaries pursuant to CLAUSE
(m) of SECTION 7.2.11, shall not exceed $5,000,000 at any time; and
(s) other Investments in the ordinary course of business not to
exceed $2,000,000; PROVIDED that such Investments shall not be used by
Taylor Holding Co.;
PROVIDED, HOWEVER, that any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements; and no Investment otherwise permitted
by CLAUSES (d), (p) or (S) shall be permitted to be made if any Default has
occurred and is continuing or would result therefrom.
SECTION 7.2.6. RESTRICTED JUNIOR PAYMENTS. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries directly or indirectly to,
declare, order, pay, make or set apart any sum for any Restricted Junior
Payment, except that:
(a) any Subsidiary may make payments and distributions to the Borrower or to
any Subsidiary Guarantor (other than Taylor Holding Co.); PROVIDED, that
Restricted Junior Payments that are used in all such cases to permit such
Obligor to redeem, retire or purchase its Capital Securities issued to
employees, consultants, agents, officers and directors of such Obligor or
any of its Subsidiaries shall only be permitted if no Default has
occurred and is continuing before or will exist immediately after giving
effect to such Restricted Junior Payment, and PROVIDED FURTHER, that the
aggregate amount of all such Restricted Junior Payments do not exceed
$500,000 during any Fiscal Year and $2,000,000 during the term of this
Agreement;
(b) the Borrower and the Subsidiary Guarantors may make (i) the payment (when
due) of the semi-annual interest payments on the Senior Unsecured Notes
and (ii) the prepayment or redemption of the principal of Senior
Unsecured Notes (together with accrued interest thereon and premium, if
any) pursuant to Section 4.10 of the Indenture with the proceeds of asset
sales that have not been reinvested in replacement assets by the Borrower
or any Subsidiary Guarantor or used to prepay the principal amount of the
Loans, in each case as described in the Indenture;
(c) CBI may make scheduled interest payments with respect to the CBI Senior
Subordinated Notes; PROVIDED, that (i) no Event of Default under SECTION
8.1.1 exists at the time of any such payment, (ii) no "Payment Blockage
Period" is then in effect under the CBI Indenture, and (iii) such
payments are not precluded by Section 10.2(a) of the CBI Indenture;
(d) the Borrower and its Subsidiaries may make scheduled interest payments with
respect to Seller Note Indebtedness; PROVIDED, that (i) no Default shall
exist before or after making such payment and (ii) such payment would not
be in contravention of the subordination term governing such Seller Note
Indebtedness;
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(e) Restricted Junior Payments made by the Borrower to redeem shares of CBI
Preferred Stock, the Warrants and other Capital Securities of the
Borrower, with the proceeds of a sale and leaseback transaction permitted
pursuant to SECTION 7.2.15 or from Additional Equity, PROVIDED, that no
Default shall exist before or after making such Restricted Payment; and
(f) Restricted Junior Payments made by the Borrower and its Subsidiaries to
prepay, redeem, purchase or otherwise acquire Senior Unsecured Notes
and/or the CBI Senior Subordinated Notes and/or Seller Note Indebtedness
with the proceeds of Additional Equity or from a sale and leaseback
transaction permitted pursuant to SECTION 7.2.15, so long as no Default
shall exist before or after making such payment.
SECTION 7.2.7. CAPITAL EXPENDITURES, ETC. Subject (in the case of Capitalized
Lease Liabilities), to CLAUSE (e) of SECTION 7.2.2, the Borrower will
not, and will not permit any of its Subsidiaries to, make or commit to
make Capital Expenditures in any Fiscal Year which aggregate in excess of
(x) $15,000,000 in Fiscal Year 2002 and (y) $12,000,000 in each Fiscal
Year thereafter; PROVIDED, HOWEVER, that to the extent the amount of
Capital Expenditures permitted to be made in any Fiscal Year pursuant to
this Section exceeds the aggregate amount of Capital Expenditures
actually made during such Fiscal Year, such excess amount (up to the
lesser of (i) $3,000,000 or (ii) 75% of the total amount of unutilized
Capital Expenditures permitted to be made in such Fiscal Year, without
giving effect to any carry-forward) may be carried forward to (but only
to) the next succeeding Fiscal Year (any such amount to be certified by
the Borrower to the Administrative Agent in the Compliance Certificate
delivered for the last Fiscal Quarter of such Fiscal Year, and any such
amount carried forward to a succeeding Fiscal Year shall be deemed to be
used prior to the Borrower and its Subsidiaries using the amount of
Capital Expenditures permitted by this Section in such succeeding Fiscal
Year without giving effect to such carry-forward).
SECTION 7.2.8. CONTINGENT LIABILITIES. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries directly or indirectly to, create
or become or be liable with respect to any Contingent Liability except:
(a) the Obligations;
(b) those resulting from endorsement of negotiable instruments for collection
in the ordinary course of business;
(c) those existing on the Closing Date (including unsecured guarantees of the
Senior Unsecured Notes delivered by Subsidiary Guarantors) and described
in ITEM 7.2.8(c) of the Disclosure Schedule and any refinancings,
refundings, renewals or extensions thereof;
(d) those arising under indemnity agreements to title insurers to cause such
title insurers to issue to the Administrative Agent mortgagee title
insurance policies;
(e) those arising with respect to customary indemnification obligations
incurred in connection with Asset Dispositions;
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(f) those incurred by the Borrower and its Subsidiaries in the ordinary course
of business with respect to surety and appeal bonds, performance and
return-of-money bonds and other similar obligations not exceeding at any
time outstanding $3,500,000 in aggregate liability;
(g) those incurred by any Person with respect to Indebtedness that such Person
is permitted to incur pursuant to SECTION 7.2.2;
(h) those incurred by the Borrower and its Subsidiaries with respect to the
obligations or liabilities of the Borrower or other Subsidiaries (other
than Taylor Holding Co.), including any guaranty by the Borrower or any
Subsidiary of rental payment obligations of the Mexican Subsidiary under
real property leases, so long as the aggregate amount of obligations and
liabilities so guarantied under this clause shall not exceed $1,000,000
in any Fiscal Year;
(i) those incurred by the Borrower or any of its Subsidiaries with respect to
obligations or liabilities of employees in the ordinary course of
business not to exceed $1,000,000 (minus the aggregate amount of
Investments made in accordance with CLAUSE (e) of SECTION 7.2.5) for the
Borrower and its Subsidiaries in the aggregate at any time outstanding;
(j) guaranties permitted by CLAUSE (p) of SECTION 7.2.5;
(k) unsecured (unless a Lien is granted in favor of Scotia Capital) Contingent
Liabilities incurred in the ordinary course of business and not for
speculative purposes to fix or hedge foreign currency risk or commodity
risk in connection with the purchase of Gold; and
(l) any other Contingent Liabilities (other than Contingent Liabilities in
favor of Taylor Holding Co.) of the Borrower and its Subsidiaries not
expressly permitted by CLAUSES (a) through (k) above, so long as any such
other Contingent Liabilities do not exceed $1,000,000.
SECTION 7.2.9. ISSUANCE OF CAPITAL SECURITIES. The Borrower will not permit any
of its U.S. Subsidiaries to issue any Capital Securities (whether for
value or otherwise) to a Person other than the Borrower or another wholly
owned Subsidiary (other than Taylor Holding Co.); PROVIDED that such
Capital Securities shall be pledged to the Administrative Agent pursuant
to a Loan Document within five Business Days following such issuance.
SECTION 7.2.10. RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower will not, nor
will the Borrower permit any of its Subsidiaries directly or indirectly
to, (a) amend, modify or waive any term or provision of its
organizational documents, including its articles of incorporation,
certificates of designations pertaining to preferred stock, by-laws,
partnership agreement or members' agreement except in a manner that would
not conflict with any provision of any Loan Document and would not be
adverse in any material respect to Lenders, unless required by law; (b)
enter into any transaction of merger or consolidation except (i) to
consummate a Permitted Acquisition, (ii) upon not less than five (5)
Business Days prior written notice to the Administrative Agent, any
Subsidiary Guarantor (other than Taylor Holding Co.) may be merged or
consolidated with or into
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another Subsidiary Guarantor (other than Taylor Holding Co.), and (iii)
the Borrower and its Subsidiaries may enter into an agreement to effect
any merger or consolidation, the closing of which is conditioned upon the
payment in full in cash of all of the Obligations (other than contingent
indemnification obligations to the extent no unsatisfied claim giving
rise thereto has been asserted) and the termination of the Revolving Loan
Commitment; (c) liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), except if it is permitted by CLAUSE (b) or
(i) to the extent such Subsidiary is dormant, (ii) to the extent such
dissolution, wind-up or liquidation will not have a Material Adverse
Effect, or (iii) the Administrative Agent shall have consented thereto;
or (d) except for Permitted Acquisitions, acquire by purchase or
otherwise all or any substantial part of the business or assets of any
other Person.
SECTION 7.2.11. DISPOSAL OF ASSETS OR SUBSIDIARY STOCK. The Borrower will not,
nor will the Borrower permit any of its Subsidiaries directly or
indirectly to, Dispose of, or grant any Person an option to acquire, in
one transaction or a series of transactions, any of its property,
business or assets, or the Capital Securities of any of its Subsidiaries,
whether now owned or hereafter acquired, except for:
(a) sales of inventory, Dispositions of obsolete or slow moving inventory and
Dispositions of obsolete or worn out machinery and equipment, in each
case made in the ordinary course of business and in a manner consistent
with past practices as in effect on the Closing Date;
(b) licensing or sublicensing of intellectual property and general intangibles
(including the licensing or granting of rights to sales representatives
to sell products of the Borrower and its Subsidiaries) and other property
of the Borrower or any of its Subsidiaries, in each case which do not
materially interfere with the business of the Borrower or any of its
Subsidiaries, made in the ordinary course of business and in a manner
consistent with past practices in effect on the Closing Date;
(c) transfers of assets resulting from any casualty or condemnation of such
assets;
(d) an agreement to effect the Disposition of all or a portion of
the assets of the Borrower or such Subsidiary, the closing of which is
conditioned upon the payment in full in cash of all of the Obligations
(other than contingent indemnification obligations to the extent no
unsatisfied claim giving rise thereto has been asserted) and the
termination of the Revolving Loan Commitment;
(e) the sale or discount of overdue accounts receivable arising in the ordinary
course of business, but only if no Event of Default exists and only in
connection with the compromise or collection thereof;
(f) the sale or other Disposition, in each case for fair market value, of any
Investments (exclusive of Investments in Subsidiaries) permitted to be
made by SECTION 7.2.5;
(g) the leasing or subleasing of real estate in the ordinary course of
business, including entering into renewals or extensions of existing
leases, entering into replacement leases, entering into subleases and
other similar transactions;
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(h) an Asset Disposition otherwise permitted by SECTION 7.2.10;
(i) the sale or issuance of Capital Securities by a Subsidiary to another
wholly owned Subsidiary (other than Taylor Holding Co.) or to the
Borrower; PROVIDED, that any Capital Securities issued by a U.S.
Subsidiary shall be pledged (together with undated stock powers executed
in blank) to the Administrative Agent under a Loan Document within five
Business Days following its issuance;
(j) any consignment arrangements or similar arrangements for the sale of assets
in the ordinary course of business and consistent with past practices as
in effect on the Closing Date;
(k) the Qualified SLB;
(l) Dispositions made by (i) the Borrower to Subsidiary Guarantors (other than
Taylor Holding Co.), (ii) Subsidiary Guarantors to other Subsidiary
Guarantors (other than Taylor Holding Co.) and (iii) Subsidiary
Guarantors to the Borrower;
(m) Dispositions made by the Borrower and/or Subsidiary Guarantors to Foreign
Subsidiaries; PROVIDED, that the amount of such Dispositions, when
aggregated with (i) the amount of intercompany Indebtedness owed by
Foreign Subsidiaries to the Borrower and the Subsidiary Guarantors
pursuant to CLAUSE (c)(ii) of SECTION 7.2.2 and (ii) the amount of
Investments made by the Borrower and the Subsidiary Guarantors in Foreign
Subsidiaries pursuant to CLAUSE (r) of SECTION 7.2.5, shall not exceed
$5,000,000 at any time; and
(n) other Asset Dispositions (exclusive of Investments in Subsidiaries and
Asset Dispositions to Taylor Holding Co.) by the Borrower or any of its
Subsidiaries if all of the following conditions are met: (i) the market
value of assets Disposed of in any single transaction or series of
related transactions does not exceed $750,000 and the aggregate market
value of assets Disposed of in any Fiscal Year does not exceed
$1,500,000; (ii) the consideration received is approximately equal to the
fair market value of such assets; (iii) the sole consideration received
is cash; (iv) after giving effect to the Asset Disposition and the
repayment of Indebtedness (if any) with the proceeds thereof, the
Borrower is in compliance on a PRO FORMA basis with the covenants set
forth in SECTION 7.2.4 recomputed for the most recently ended Fiscal
Quarter for which information is available and is in compliance with all
other terms and conditions contained in this Agreement; and (v) no
Default then exists or shall result from such Asset Disposition.
Notwithstanding any of the foregoing, the Borrower will not permit Taylor
Holding Co. to assign, pledge (except in favor of the Administrative Agent),
sell or otherwise transfer in any manner whatsoever any CBI Senior Subordinated
Notes held by Taylor Holding Co. to any Person; PROVIDED, HOWEVER, that Taylor
Holding Co. shall be permitted to retire, cancel or otherwise terminate such CBI
Senior Subordinated Notes in a manner reasonably satisfactory to the
Administrative Agent.
SECTION 7.2.12. CHANGES RELATING TO INDEBTEDNESS/GOLD CONSIGNMENT AGREEMENT. The
Borrower will not, nor will the Borrower permit any of its Subsidiaries
directly or indirectly to,
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(a) change or amend the terms of any of its Subordinated Debt, the Seller Notes
or the Senior Unsecured Notes if the effect of such amendment is to:
(i) increase the interest rate on such Indebtedness;
(ii) change the dates upon which payments of principal or interest are due on
such Indebtedness (other than any changes that would extend the maturity
or date of payment of such principal or interest or reduce the amount of
such payment);
(iii) change any event of default or add or make more restrictive any covenant
with respect to such Indebtedness;
(iv) change the prepayment provisions of such Indebtedness;
(v) change the subordination provisions thereof (or the subordination terms of
any guaranty thereof); or
(vi) change or amend any other term if such change or amendment would materially
increase the obligations of the obligor or confer additional material
rights on the holder of such Indebtedness in a manner adverse to the
Borrower, any of its Subsidiaries or the Lenders;
PROVIDED, that CBI will not designate any Indebtedness (other than the
Obligations) as "Designated Senior Indebtedness" under clause (i) of the
definition thereof under the CBI Indenture, nor will the Borrower or any of its
Subsidiaries pay any monetary consideration for any amendments, waiver or other
modifications permitted in CLAUSES (i) through (vi) above; or
b) change or amend the terms of the Gold Consignment Agreement if the effect
of such amendment is to (i) increase the "Commitment Amount", as such
term is defined in the Gold Consignment Agreement, by more than 10%
during any Fiscal Year; (ii) change any event of default or add or make
more restrictive any covenant with respect thereto; (iii) grant
additional collateral (other than that in effect on the Closing Date); or
(iv) change or amend any other term if such change or amendment would (A)
materially increase the monetary obligations of the obligor or (B) confer
additional material rights on the holder of the Gold Consignment
Agreement in a manner adverse to the Lenders.
SECTION 7.2.13. TRANSACTIONS WITH AFFILIATES. The Borrower will not, nor will
the Borrower permit any of its Subsidiaries directly or indirectly to,
enter into or permit to exist any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any
management, consulting, investment banking, advisory or other similar
services) with any Affiliate or with any director, officer or employee of
any Obligor, except
(a) payments of the management fees as set forth on ITEM 7.2.13 of the
Disclosure Schedule not to exceed $3,000,000 in any Fiscal Year; provided
that the maximum amount of fees for any Fiscal Year may be increased by
an amount equal to the lesser of (a) $1,000,000 and (b) the sum of (i) 6%
of the increase, if any, in EBITDA for such Fiscal Year resulting from
Permitted Acquisitions consummated during such Fiscal Year and (ii) the
lesser of (x) 6% of the increase, if any, in EBITDA for such Fiscal Year
due to equity
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contributions to the Borrower and its Subsidiaries made by CHP during
such Fiscal Year for purposes other than to consummate Permitted
Acquisitions and (y) 25% of the aggregate amount of equity contributions
to the Borrower and its Subsidiaries made by CHP during such Fiscal Year
for purposes other than to consummate Permitted Acquisitions.
Notwithstanding any of the foregoing, payments of management fees
pursuant to this Section may only be made so long as both before and
after giving effect to any such payment no Default shall have occurred
and be continuing and the Borrower is in compliance with the covenants
set forth in SECTION 7.2.4 assuming that the payment proposed to be made
had been made on the last day of the calendar quarter most recently ended
(PROVIDED, however after the cure or waiver of any such Event of Default
or financial covenant non-compliance, the Borrower may pay management
fees that were not paid as a result of the existence of such Event of
Default or financial covenant non-compliance);
(b) transactions (other than those described in CLAUSE (c) below) in the
ordinary course of business and pursuant to the reasonable requirements
of the business of the Borrower and its Subsidiaries and upon fair and
reasonable terms which are fully disclosed to the Administrative Agent
(PROVIDED, that the terms of transactions with portfolio companies of CHP
are not required to be disclosed to the Administrative Agent) and are no
less favorable to the Borrower or Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an
Affiliate;
(c) payments of brokerage, investment bankers, director and other comparable
fees upon fair and reasonable terms, are no less favorable to the
Borrower or Subsidiary than would be obtained in a comparable arm's
length transaction with a Person that is not an Affiliate and the
aggregate amount of all payments made by the Borrower and its
Subsidiaries in connection therewith do not exceed $750,000 during any
Fiscal Year and $2,000,000 during the term of this Agreement;
(d) payment of reasonable compensation (including reasonable bonuses) to
officers and employees for services actually rendered to the Borrower or
a Subsidiary of the Borrower; and
(e) transactions among the Borrower and its Subsidiaries (and among
Subsidiaries) otherwise permitted herein.
SECTION 7.2.14. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO OBLIGORS. Except
as provided herein, the Borrower will not, nor will the Borrower permit
any of its Subsidiaries directly or indirectly to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance
or restriction of any kind on the ability of any such Subsidiary to:
(a) pay dividends or make any other distribution on any of such
Subsidiary's Capital Securities owned by the Borrower or any Obligor;
(b) pay any Indebtedness owed to the Borrower or any other Obligor;
(c) make loans or advances to the Borrower or any other Obligor;
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(d) transfer any of its property or assets to the Borrower or any
other Obligor;
(e) create or assume any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired; or
(f) amend or otherwise modify any Loan Document.
The foregoing prohibitions shall not apply to restrictions contained (i) in any
Loan Document or (ii) in the case of CLAUSE (c), any agreement governing any
Indebtedness permitted by CLAUSE (e) of SECTION 7.2.2 as to the assets financed
with the proceeds of such Indebtedness.
SECTION 7.2.15. SALE AND LEASEBACK; LANDLORD WAIVER. (a) The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly
enter into any Sale and Leaseback Transaction; PROVIDED that the Borrower
may enter into the Qualified SLB so long as (i) no Default has occurred
and is continuing or would result therefrom and (ii) the Borrower shall
have provided the Administrative Agent written notice of the Qualified
SLB at least 15 Business Days prior to the consummation thereof.
(b) The Borrower shall use its best efforts to have the lessor of the property
that is the subject of the Qualified SLB (prior to the consummation of
the Qualified SLB) execute and deliver to the Administrative Agent a
waiver (with respect to the lease for such property) in form and
substance reasonably satisfactory to the Administrative Agent; PROVIDED,
that until the Administrative Agent receives a copy of such waiver, duly
executed by such lessor, or in the event such best efforts do not result
in the delivery of such a waiver, the Borrowing Base Amount shall be
reduced by an amount equal to six (6) months of the then current rent
under the terms of the lease relating to the property that is the subject
of the Qualified SLB.
SECTION 7.2.16. SUBSIDIARIES. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries directly or indirectly to, establish,
create or acquire any new Subsidiary, except that the Borrower and its
Subsidiaries (other than Taylor Holding Co.) may establish, create or
acquire Subsidiaries to consummate a Permitted Acquisition. The Borrower
shall give the Administrative Agent at least ten (10) Business Days'
advance written notice of the establishment, creation or acquisition of
any such Subsidiary and shall comply with SECTION 7.1.8.
SECTION 7.2.17. ACCOUNTING CHANGES. The Borrower will not, and will not permit
any of its Subsidiaries to, change its or their Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following events or
occurrences described in this Article shall constitute an "EVENT OF
DEFAULT".
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SECTION 8.1.1. PAYMENT. The Borrower shall default in the payment or prepayment
when due of
(a) any payment of principal of any Loan when due, or to reimburse the
Administrative Agent for any Reimbursement Obligation or any deposit of
cash for collateral purposes pursuant to SECTION 2.6.4; or
(b) any interest on any Loan, or any fee described in Article III or any other
monetary Obligation, and such default shall continue unremedied for a
period of five days after such amount was due.
SECTION 8.1.2. BREACH OF WARRANTY. Any representation, warranty, certification
or other statement made by any Obligor in any Loan Document or in any
statement or certificate at any time given by such Person in writing
pursuant or in connection with any Loan Document is false in any material
respect on the date made.
SECTION 8.1.3. BREACH OF CERTAIN PROVISIONS. Failure of the Borrower or a
Subsidiary to perform or comply with any term or condition contained in
(i) SECTION 7.2 (other than SECTION 7.2.1), SECTION 7.1.1, SECTION 7.1.7
or SECTION 7.1.10; or (ii) that portion of SECTION 7.1.3 relating to the
Borrower's and its Subsidiaries' obligation to maintain insurance and
such failure is not remedied or waived within five (5) days of such
failure; or (iii) SECTION 7.1.4 or SECTION 7.2.1 and such failure is not
remedied or waived within ten (10) days of such failure.
SECTION 8.1.4. OTHER DEFAULTS UNDER LOAN DOCUMENTS. The Borrower or any other
Obligor defaults in the performance of or compliance with any term
contained in this Agreement or the other Loan Documents and such default
is not remedied or waived within thirty (30) days after receipt by the
Borrower of notice from the Administrative Agent or the Required Lenders
of such default (other than occurrences described in other provisions of
this Article for which a different grace or cure period is specified or
which constitute immediate Events of Default).
SECTION 8.1.5. DEFAULT IN OTHER AGREEMENTS. (i) Failure of the Borrower or any
of its Subsidiaries to pay when due (whether by acceleration or
otherwise) or within any applicable grace period any principal or stated
amount of, or interest on, Indebtedness (other than the Credit
Extensions) or any Contingent Liability or (ii) breach or default of the
Borrower or any of its Subsidiaries, or the occurrence of any condition
or event, with respect to any Indebtedness (other than the Credit
Extensions) or any Contingent Liabilities, if the effect of such failure
to pay, breach, default or occurrence is to cause, or to permit the
holder or holders (or, if applicable, the trustee or agent for such
holders) then to cause, Indebtedness and/or Contingent Liabilities having
an individual principal amount in excess of $500,000 or having an
aggregate principal (or stated) amount in excess of $1,000,000 to become
or be declared due prior to their stated maturity or to require such
Indebtedness and/or Contingent Liabilities to be redeemed, purchased or
defeased (or require an offer to be made to the holders thereof to
redeem, purchase or defease such Indebtedness and/or Contingent
Liabilities).
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SECTION 8.1.6. JUDGMENTS AND ATTACHMENTS. Any money judgment (other than those
described in SECTION 8.1.9) involving (1) an amount in any individual
case in excess of $500,000 or (2) an amount in the aggregate at any time
in excess of $1,000,000 (in either case to the extent not adequately
covered by insurance) is entered or filed against the Borrower or any of
its Subsidiaries or any of their respective assets and remains
undischarged, unvacated, unbonded or unstated for a period of sixty (60)
days or in any event later than five (5) Business Days prior to the date
of any proposed sale of assets thereunder with a fair market or book
value in excess of $250,000 in the aggregate.
SECTION 8.1.7. ERISA; PENSION PLANS. Either (i) the Borrower or any of its
Affiliates fails to make full payment when due of all amounts which,
under the provisions of any employee benefit plans or any applicable
provisions of the Code, any such Person is required to pay as
contributions thereto and such failure results in or is likely to result
in a Material Adverse Effect; or (ii) an accumulated funding deficiency
in excess of $1,000,000 occurs or exists, whether or not waived, with
respect to any such employee benefit plans; or (iii) any employee benefit
plan loses its status as a qualified plan under the Code which results in
or could reasonably be expected to result in a Material Adverse Effect.
SECTION 8.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9. INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. Any of the
following events shall occur:
(a) a court enters a decree or order for relief with respect to the Borrower or
any of its Subsidiaries (other than the Mexican Subsidiary) in an
involuntary case under the Bankruptcy Code, which decree or order is not
stayed or other similar relief is not granted under any applicable
federal or state law; or
(b) the continuance of any of the following events for seventy-five (75) days
unless dismissed, stayed, bonded or discharged; (i) an involuntary case
is commenced against the Borrower or any of its Subsidiaries (other than
the Mexican Subsidiary), under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or (ii) a decree or order
of a court for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower or any of its Subsidiaries (other than the Mexican Subsidiary),
or over all or a substantial part of its property, is entered; or (iii)
an interim receiver, trustee or other custodian is appointed without the
consent of the Borrower or any of its Subsidiaries (other than the
Mexican Subsidiary), for all or a substantial part of the property of any
such Person; or
(c) the Borrower or any of its Subsidiaries (other than the Mexican Subsidiary)
commences a voluntary case under the Bankruptcy Code, or consents to the
entry of an order for relief in an involuntary case or to the conversion
of an involuntary case to be a voluntary case under any such law or
consents to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property;
or
(d) the Borrower or any of its Subsidiaries (other than the Mexican Subsidiary)
makes any assignment for the benefit of creditors; or
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(e) the Board of Directors of the Borrower or any of its Subsidiaries (other
than the Mexican Subsidiary) adopts any resolution or otherwise
authorizes action to approve any of the actions referred to in this
section.
SECTION 8.1.10. FAILURE OF SECURITY. The Administrative Agent, for the benefit
of the Administrative Agent and the Secured Parties, does not have or
ceases to have a valid and perfected first priority security interest
free and clear of all Liens or claims (except for Liens permitted
pursuant to SECTION 7.2.3) in all or any substantial portion of the
Collateral, in each case, for any reason other than the failure of the
Administrative Agent to take any action within its control.
SECTION 8.1.11. FAILURE OF SUBORDINATION. Unless otherwise waived or consented
to by the Administrative Agent, the Lenders and the Issuers in writing,
the subordination provisions relating to any Subordinated Debt or Seller
Note Indebtedness (the "SUBORDINATION PROVISIONS") shall fail to be
enforceable by the Administrative Agent, the Lenders and the Issuers in
accordance with the terms thereof, or the monetary Obligations shall fail
to constitute "Senior Indebtedness" (or similar term) referring to the
Obligations; or the Borrower or any of its Subsidiaries shall, directly
or indirectly, disavow or contest in any manner (i) the effectiveness,
validity or enforceability of any of the Subordination Provisions, (ii)
that the Subordination Provisions exist for the benefit of the
Administrative Agent, the Lenders and the Issuers or (iii) that all
payments of principal of or premium and interest on the Subordinated Debt
or Seller Note Indebtedness, or realized from the liquidation of any
property of any Obligor, shall be subject to any of such Subordination
Provisions.
SECTION 8.1.12. DAMAGES; CASUALTY. Any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any lockout,
embargo, condemnation, act of God or public enemy, or other casualty or
any other event which causes, for more than thirty (30) consecutive days,
the cessation or substantial curtailment of revenue producing activities
at any facility of the Borrower or any of its Subsidiaries, if any such
event or circumstance could reasonably be expected to have a Material
Adverse Effect.
SECTION 8.1.13. LICENSES AND PERMITS. The loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrower or any of its Subsidiaries, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a
Material Adverse Effect.
SECTION 8.1.14. CHANGE OF CONTROL/ASSET SALE UNDER CBI INDENTURE. A "CHANGE OF
CONTROL" or "ASSET SALE", each as defined in the CBI Indenture, shall
occur.
SECTION 8.1.15. NET OPERATING LOSSES. A change in the ownership of any stock
issued by the Borrower or CBI shall occur and (i) as a result of such
change in stock ownership, CBI shall experience an "ownership change"
within the meaning of Section 382 of the Code, (ii) as a result of such
ownership change, the ability of CBI or the affiliated group of
corporations for Federal income tax purposes that includes CBI (the "CBI
AFFILIATED GROUP") to use net operating losses ("NOLs") to offset taxable
income earned by CBI or the CBI Affiliated Group is restricted, and (iii)
such restriction would result in an
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increase in the Federal income tax liability of CBI or the CBI Affiliated
Group and, in the year such ownership change occurs or any later taxable
year, would reduce the amount of NOLs available to offset taxable income
earned by CBI or the CBI Affiliated Group by at least $10,000,000.
SECTION 8.1.16. INJUNCTION. The Borrower and its Subsidiaries taken as a whole
are enjoined, restrained or in any way prevented by the order of any
court or any administrative or regulatory agency from conducting all or
any material part of its business for more than thirty (30) days if any
such event or circumstances could reasonably be expected to have a
Material Adverse Effect.
SECTION 8.1.17. ENVIRONMENTAL MATTERS. The Borrower or any of its Subsidiaries
fails to: (i) obtain or maintain any operating licenses or permits
required by Environmental Law; (ii) begin, continue or complete any
remediation activities as required by any Environmental Law; (iii) store
or dispose of any Hazardous Materials in accordance with applicable
Environmental Laws; or (iv) comply with any Environmental Law; if any
such failure, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 8.1.18. DISSOLUTION. Any order, judgment or decree is entered against
the Borrower or any of its Subsidiaries (other than the Mexican
Subsidiary) decreeing the dissolution of any such Person and such order
remains undischarged, unvacated, unbonded or unstayed for a period in
excess of fifteen (15) days.
SECTION 8.1.19. SOLVENCY. The Borrower or any Subsidiary Guarantor admits in
writing its present or prospective inability to pay its debts as they
become due.
SECTION 8.1.20. INVALIDITY OF LOAN DOCUMENTS. Any of the Loan Documents for any
reason, other than a partial or full release in accordance with the terms
thereof, ceases to be in full force and effect or is declared to be null
and void (and, if such invalidity is such so as to be amenable to cure
without disadvantaging the position of the Lenders thereunder, the
Borrower shall have failed to cure such invalidity within thirty (30)
days after notice from the Administrative Agent), or any Obligor denies
that it has any further liability under any Loan Documents to which it is
party, or gives notice to such effect (except as such Loan Documents may
be terminated or no longer in force and effect in accordance with the
terms thereof).
SECTION 8.1.21. EVENT OF DEFAULT UNDER GOLD CONSIGNMENT AGREEMENT. The existence
of an "EVENT OF DEFAULT", as defined in the Gold Consignment Agreement.
SECTION 8.1.22. CONDUCT OF BUSINESS. Taylor Holding Co. engages in any type of
business activity other than (i) the ownership of 1% of the Capital
Securities of Taylor, (ii) the ownership of the CBI Senior Subordinated
Notes owned by it as of the Closing Date and (iii) the performance of its
obligations under the Loan Documents to which it is a party.
SECTION 8.2. ACTION IF BANKRUPTCY. If any Event of Default described in CLAUSES
(a) through (d) of SECTION 8.1.9 with respect to the Borrower shall
occur, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal
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amount of all outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become immediately
due and payable, without notice or demand to any Person, each Obligor
shall automatically and immediately be obligated to Cash Collateralize
all Letter of Credit Outstandings and the Obligations of each Subsidiary
Guarantor under the Subsidiary Guaranty shall automatically be deemed
accelerated.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default (other
than any Event of Default described in CLAUSES (a) through (D) of SECTION
8.1.9 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent,
upon the direction of the Required Lenders, shall by notice to the
Borrower declare all or any portion of the outstanding principal amount
of the Loans and other Obligations (including Reimbursement Obligations)
to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such
Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice,
demand or presentment, and/or, as the case may be, the Commitments shall
terminate and the Borrower shall automatically and immediately be
obligated to Cash Collateralize all Letter of Credit Outstandings. At
such time the obligations of each Subsidiary Guarantor under the
Subsidiary Guaranty shall automatically be deemed accelerated.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. ACTIONS. Each Lender hereby appoints Scotia Capital as its
Administrative Agent under and for purposes of each Loan Document. Each
Lender authorizes the Administrative Agent to act on behalf of such
Lender under each Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the
Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section
or as otherwise advised by counsel in order to avoid contravention of
applicable law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof, together with such powers as may be incidental
thereto. Each Lender hereby indemnifies (which indemnity shall survive
any termination of this Agreement) the Administrative Agent, PRO RATA
according to such Lender's proportionate Total Exposure Amount, from and
against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against, the Administrative Agent
in any way relating to or arising out of any Loan Document, (including
attorneys' fees), and as to which the Administrative Agent is not
reimbursed by the Borrower; PROVIDED, HOWEVER, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a
court of competent jurisdiction in a final proceeding to have resulted
from the Administrative Agent's gross negligence or wilful misconduct.
The Administrative Agent shall not be required to take any action under
any Loan Document, or to prosecute or defend any suit in respect of any
Loan Document, unless it is
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indemnified hereunder to its satisfaction. If any indemnity in favor of
the Administrative Agent shall be or become, in the Administrative
Agent's determination, inadequate, the Administrative Agent may call for
additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION 9.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent shall have
been notified in writing by any Lender by 3:00 p.m. on the Business Day
prior to a Borrowing that such Lender will not make available the amount
which would constitute its Percentage of such Borrowing on the date
specified therefor, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent and, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender
and the Borrower severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such
amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to
Loans comprising such Borrowing (in the case of the Borrower) and (in the
case of a Lender), at the Federal Funds Rate (for the first two Business
Days after which such amount has not been repaid), and thereafter at the
interest rate applicable to Loans comprising such Borrowing.
SECTION 9.3. EXCULPATION. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Secured
Party for any action taken or omitted to be taken by it under any Loan
Document, or in connection therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of any Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the
Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by any Obligor of its Obligations. Any such
inquiry which may be made by the Administrative Agent shall not obligate
it to make any further inquiry or to take any action. The Administrative
Agent shall be entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement or writing
which the Administrative Agent believes to be genuine and to have been
presented by a proper Person.
SECTION 9.4. SUCCESSOR. The Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Borrower and all Lenders. If
the Administrative Agent at any time shall resign, the Required Lenders
may appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no
successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be one of
the Lenders or a commercial banking institution organized under the laws
of the United States (or any State thereof) or a United States branch or
agency of a commercial banking institution, and having a combined capital
and surplus of
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at least $250,000,000; PROVIDED, HOWEVER, that if, such retiring
Administrative Agent is unable to find a commercial banking institution
which is willing to accept such appointment and which meets the
qualifications set forth in above, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective and the Lenders
shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment
as such successor Administrative Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative
Agent's resignation hereunder as the Administrative Agent, the provisions
of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent under the
Loan Documents, and SECTION 10.3 and SECTION 10.4 shall continue to inure
to its benefit.
SECTION 9.5. LOANS BY SCOTIA CAPITAL. Scotia Capital shall have the same rights
and powers with respect to (x) the Credit Extensions made by it or any of
its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other Lender and may exercise the same as if it were not the
Administrative Agent. Scotia Capital and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower
as if Scotia Capital were not the Administrative Agent hereunder.
SECTION 9.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and
based on such Lender's review of the financial information of the
Borrower, the Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it
will, independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights
and privileges available to it under the Loan Documents.
SECTION 9.7. COPIES, ETC. The Administrative Agent shall give prompt notice to
each Lender of each notice or request required or permitted to be given
to the Administrative Agent by the Borrower or any other Obligor pursuant
to the terms of the Loan Documents (unless concurrently delivered to the
Lenders by the Borrower or such Obligor). The Administrative Agent will
distribute to each Lender each document or instrument received for its
account and copies of all other communications received by the
Administrative Agent from the Borrower or any other Obligor for
distribution to the Lenders by the Administrative Agent in accordance
with the terms of the Loan Documents. The Administrative Agent will
distribute to each Lender copies of notices
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received by the Administrative Agent in its capacity as "Agent" under the
Intercreditor Agreement.
SECTION 9.8. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by the
Loan Documents, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, thereunder in
accordance with instructions given by the Required Lenders or all of the
Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto
shall be binding on all Secured Parties. For purposes of applying amounts
in accordance with this Section, the Administrative Agent shall be
entitled to rely upon any Secured Party that has entered into a Rate
Protection Agreement with any Obligor for a determination (which such
Secured Party agrees to provide or cause to be provided upon request of
the Administrative Agent) of the outstanding Obligations owed to such
Secured Party under any Rate Protection Agreement. Unless it has actual
knowledge evidenced by way of written notice from any such Secured Party
and the Borrower to the contrary, the Administrative Agent, in acting in
such capacity under the Loan Documents, shall be entitled to assume that
no Rate Protection Agreements or Obligations in respect thereof are in
existence or outstanding between any Secured Party and any Obligor.
SECTION 9.9. DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a written notice from a Lender or the
Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives
such a notice of the occurrence of a Default, the Administrative Agent
shall give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to SECTION 10.1) take such action with respect to such
Default as shall be directed by the Required Lenders; PROVIDED, that
unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to
such Default as it shall deem advisable in the best interest of the
Secured Parties except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders or all Lenders.
SECTION 9.10. OTHER AGENTS. Each Person identified on the signature pages of
this Agreement as the "Syndication Agent" or the "Documentation Agent"
shall not have any right, power, obligation, liability, responsibility or
duty under this Agreement (or any other Loan Document) other than those
applicable to it in its capacity as a Lender to the extent it is a Lender
hereunder. Without limiting the foregoing, the Lender so identified as
the "Syndication Agent" or the "Documentation Agent" shall not have or be
deemed to have any fiduciary relationship with any Lender. Each Person
party hereto acknowledges that it has not relied, and will not rely, on
any Person so identified as the "Syndication Agent" or the "Documentation
Agent" in deciding to enter into this Agreement and each other
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Loan Document to which it is a party or in taking or not taking action
hereunder or thereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of each Loan Document may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrower and
the Required Lenders; PROVIDED, HOWEVER, that no such amendment,
modification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made
by a Lender pursuant to its Commitments, extend the final Commitment
Termination Date of Credit Extensions made (or participated in) by a
Lender or extend the final Stated Maturity Date for any Lender's Loan, in
each case without the consent of such Lender (it being agreed, however,
that any vote to rescind any acceleration made pursuant to SECTION 8.2
and SECTION 8.3 of amounts owing with respect to the Loans and other
Obligations shall only require the vote of the Required Lenders);
(c) reduce the principal amount of or rate of interest on any Lender's Loan,
reduce any fees payable to any Lender or extend the date on which
interest or fees are payable in respect of such Lender's Loans, in each
case without the consent of such Lender;
(d) reduce the percentage set forth in the definition of "Required Lenders" or
modify any requirement hereunder that any particular action be taken by
all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by
the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the
Borrower from its Obligations under the Loan Documents or any Subsidiary
Guarantor from its obligations under a Guaranty or (ii) all or a
significant portion of the collateral under the Loan Documents, in each
case without the consent of all Lenders;
(g) affect adversely the interests, rights or obligations of the Administrative
Agent (in its capacity as the Administrative Agent) or any Issuer (in its
capacity as Issuer) or the Swing Line Lender, unless consented to by the
Administrative Agent or such Issuer, as the case may be; or
(h) change the definition of "Borrowing Base Amount", "Eligible Account",
"Eligible Inventory" or "Net Asset Value" (in each case if the effect of
such change would be to require a Lender to make or participate in a
Credit Extension in an amount that is greater than such Lender would have
had to make or participate in immediately prior to such change).
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No failure or delay on the part of any Secured Party in exercising any power or
right under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No notice
to or demand on any Obligor in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by any Secured Party
under any Loan Document shall, except as may be otherwise stated in such waiver
or approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. NOTICES; TIME. All notices and other communications provided under
each Loan Document shall be in writing or by facsimile and addressed,
delivered or transmitted, if to the Borrower or the Administrative Agent,
at its address or facsimile number set forth below its signature in this
Agreement, and if to a Lender or Issuer to the applicable Person at its
address or facsimile number set forth on SCHEDULE II hereto or set forth
in the Lender Assignment Agreement, or at such other address or facsimile
number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when the confirmation of transmission
thereof is received by the transmitter. The parties hereto agree that
delivery of an executed counterpart of a signature page to this Agreement
and each other Loan Document by facsimile shall be effective as delivery
of an original executed counterpart of this Agreement or such other Loan
Document. Unless otherwise indicated, all references to the time of a day
in a Loan Document shall refer to New York time.
SECTION 10.3. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay on
demand all expenses of the Administrative Agent (including the fees and
out-of-pocket expenses of Mayer, Brown, Rowe & Maw, counsel to the
Administrative Agent and of local counsel, if any, who may be retained by
or on behalf of the Administrative Agent) in connection with
(a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to any Loan Document as may from time
to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and
(b) the filing or recording of any Loan Document (including the Filing
Statements) and all amendments, supplements, amendment and restatements
and other modifications to any thereof, searches made following the
Effective Date in jurisdictions where Filing Statements (or other
documents evidencing Liens in favor of the Secured Parties) have been
recorded and any and all other documents or instruments of further
assurance required to be filed or recorded by the terms of any Loan
Document; and
(c) the preparation and review of the form of any document or instrument
relevant to any Loan Document.
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The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for any Other Taxes as provided in SECTION 4.6. The Borrower also
agrees to reimburse each Secured Party upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses
of counsel to each Secured Party) incurred by such Secured Party in connection
with (x) the negotiation of any restructuring or "work-out" with the Borrower,
whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the execution and delivery of
this Agreement by each Secured Party, the Borrower hereby indemnifies,
exonerates and holds each Secured Party and each of their respective
officers, directors, employees and agents (collectively, the "INDEMNIFIED
PARTIES") free and harmless from and against any and all actions, causes
of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and
disbursements, whether incurred in connection with actions between or
among the parties hereto or the parties hereto and third parties
(collectively, the "INDEMNIFIED LIABILITIES"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of any Loan Document by any of the
Indemnified Parties (including any action brought by or on behalf of the
Borrower as the result of any determination by the Required Lenders
pursuant to ARTICLE V not to fund any Credit Extension, provided that any
such action is resolved in favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any acquisition or
proposed acquisition by any Obligor or any Subsidiary thereof of all or
any portion of the Capital Securities or assets of any Person, whether or
not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter relating to the protection of
the environment or the Release by any Obligor or any Subsidiary thereof
of any Hazardous Material;
(e) the presence on or under, or the Release from, any real property owned or
operated by any Obligor or any Subsidiary thereof of any Hazardous
Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, such Obligor
or Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification herein shall
survive repayment of the Obligations and any transfer of the property of
any Obligor or its Subsidiaries by foreclosure or by a deed in lieu of
foreclosure for any Lender's Environmental Liability, regardless of
whether caused by, or within the control of, such Obligor or such
Subsidiary);
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except for Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct. Each Obligor and its
successors and assigns hereby waive, release and agree not to make any
claim or bring any cost recovery action against, any Indemnified Party
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to the
extent that any Indemnified Party is strictly liable under any
Environmental Laws, each Obligor's obligation to such Indemnified Party
under this indemnity shall likewise be without regard to fault on the
part of any Obligor with respect to the violation or condition which
results in liability of an Indemnified Party. If and to the extent that
the foregoing undertaking may be unenforceable for any reason, each
Obligor agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
SECTION 10.5. SURVIVAL. The obligations of the Borrower under SECTIONS 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under SECTION
9.1, shall in each case survive any assignment from one Lender to another
(in the case of SECTIONS 10.3 and 10.4) and the occurrence of the
Termination Date. The representations and warranties made by each Obligor
in each Loan Document shall survive the execution and delivery of such
Loan Document.
SECTION 10.6. SEVERABILITY. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions of such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. HEADINGS. The various headings of each Loan Document are inserted
for convenience only and shall not affect the meaning or interpretation
of such Loan Document or any provisions thereof.
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may
be executed by the parties hereto in several counterparts, each of which
shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, the
Administrative Agent and each Lender (or notice thereof satisfactory to
the Administrative Agent), shall have been received by the Administrative
Agent.
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT. EACH LOAN DOCUMENT (OTHER THAN
THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE
DESIGNATED, THE
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INTERNATIONAL STANDBY PRACTICES (ISP98 - INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS NOT
GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
The Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter thereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that the Borrower may not
assign or transfer its rights or obligations hereunder without the
consent of all Lenders.
SECTION 10.11. SALE AND TRANSFER OF CREDIT EXTENSIONS; PARTICIPATIONS IN CREDIT
EXTENSIONS AND NOTES. Each Lender may assign, or sell participations in,
its Loans, Letters of Credit and Commitments to one or more other Persons
in accordance with this the terms set forth below.
SECTION 10.11.1. ASSIGNMENTS. Any Lender, pursuant to a Lender Assignment
Agreement,
(a) with the consent of the Borrower, the Administrative Agent, the Issuer (if
different) and the Swing Line Lender (if different) (which consents shall
not be unreasonably delayed or withheld and, which consent, in the case
of the Borrower, shall not be required during the continuation of an
Event of Default; PROVIDED, HOWEVER, that the Administrative Agent, the
Borrower, the Issuer and the Swing Line Lender may withhold such consent
in their sole discretion to an assignment to a Person not satisfying the
credit ratings set forth in CLAUSE (f)) may at any time assign and
delegate to one or more commercial banks or other financial institutions;
and
(b) upon notice to the Borrower, the Administrative Agent, the Issuer and the
Swing Line Lender, upon the Administrative Agent's acknowledgment on a
Lender Assignment Agreement, may assign and delegate to any of its
Affiliates or to any other Lender;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's Loans, Letter of
Credit Outstandings and Commitments in a minimum aggregate amount of $2,500,000
(or, if less, the entire remaining amount of such Lender's Loans, Letter of
Credit Outstandings and Commitments). Each Obligor and the Administrative Agent
shall be entitled to continue to deal solely and directly with a Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until
(c) notice of such assignment and delegation, together with (i) payment
instructions, (ii) the Internal Revenue Service forms or other statements
contemplated or required to be delivered pursuant to SECTION 4.6, if
applicable, and (iii) addresses and related information with respect to
such Assignee Lender, shall have been delivered to the Borrower and the
Administrative Agent by such assignor Lender and such Assignee Lender;
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(d) such Assignee Lender shall have executed and delivered to the Borrower and
the Administrative Agent a Lender Assignment Agreement, accepted by the
Administrative Agent; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment is registered with Register pursuant to
CLAUSE (b) of SECTION 2.7, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender under the Loan Documents, and (y) the assignor Lender,
to the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt of notice that the Administrative
Agent has received and accepted an executed Lender Assignment Agreement (and if
requested by the Assignee Lender), but subject to CLAUSE (c), the Borrower shall
execute and deliver to the Administrative Agent (for delivery to the relevant
Assignee Lender) a new Note evidencing such Assignee Lender's assigned Loans and
Commitments and, if the assignor Lender has retained Loans and Commitments
hereunder (and if requested by such Lender), a replacement Note in the principal
amount of the Loans and Commitments retained by the assignor Lender hereunder
(such Note to be in exchange for, but not in payment of, the Note then held by
such assignor Lender). Each such Note shall be dated the date of the predecessor
Note. The assignor Lender shall mark each predecessor Note "exchanged" and
deliver each of them to the Borrower. Accrued interest on that part of each
predecessor Note evidenced by a new Note, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on that part of
each predecessor Note evidenced by a replacement Note shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Note and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee in the
amount of $3,500 to the Administrative Agent upon delivery of any Lender
Assignment Agreement. Notwithstanding any other term of this Section, the
agreement of Scotia Capital to provide the Swing Line Loan Commitment shall not
impair or otherwise restrict in any manner the ability of Scotia Capital to make
any assignment of its Loans or Commitments, it being understood and agreed that
Scotia Capital may terminate its Swing Line Loan Commitment, either in whole or
in part, in connection with the making of any assignment. Any attempted
assignment and delegation not made in accordance with this Section shall be null
and void. Notwithstanding anything to the contrary set forth above, any Lender
may (without requesting the consent of the Borrower or the Administrative Agent)
pledge its Loans to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank.
(f) In the event that S&P or Moody's, shall, after the date that any Person
becomes a Lender, downgrade the long-term certificate of deposit ratings
of such Lender, and the resulting ratings shall be below BBB- or Baa3,
respectively, or the equivalent, then the Borrower, the Swing Line Lender
and each Issuer shall each have the right, but not the obligation, upon
notice to such Lender and the Administrative Agent, to replace such
Lender with a financial institution (a "REPLACEMENT LENDER") acceptable
to the Borrower, the
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Administrative Agent, the Issuer and the Swing Line Lender (such consents
not to be unreasonably withheld or delayed; PROVIDED, that no such
consent shall be required if the Replacement Lender is an existing
Lender), and upon any such downgrading of any Lender's long-term
certificate of deposit rating, each such Lender hereby agrees to transfer
and assign (in accordance with SECTION 10.11.1) all of its Commitments
and other rights and obligations under the Loan Documents (including
Reimbursement Obligations) to such Replacement Lender; PROVIDED, HOWEVER,
that (i) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments, Loans and
Notes being assigned, free and clear of any Liens) and (ii) the purchase
price paid by the Replacement Lender shall be in the amount of such
Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in
respect thereof, plus all other amounts (other than the amounts (if any)
demanded and unreimbursed under SECTIONS 4.2, 4.3, 4.5 and 4.6, which
shall be paid by the Borrower), owing to such Lender hereunder. Upon any
such termination or assignment, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of any
provisions of this Agreement which by their terms survive the termination
of this Agreement.
SECTION 10.11.2. PARTICIPATIONS. Any Lender may sell to one or more commercial
banks or other Persons (each of such commercial banks and other Persons
being herein called a "PARTICIPANT") participating interests in any of
the Loans, Commitments, or other interests of such Lender hereunder;
PROVIDED, HOWEVER, that
(a) no participation contemplated in this Section shall relieve such Lender
from its Commitments or its other obligations under any Loan Document;
(b) such Lender shall remain solely responsible for the performance of its
Commitments and such other obligations;
(c) each Obligor and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under each Loan Document;
(d) no Participant, unless such Participant is an Affiliate of such Lender or
is itself a Lender, shall be entitled to require such Lender to take or
refrain from taking any action under any Loan Document, except that such
Lender may agree with any Participant that such Lender will not, without
such Participant's consent, take any actions of the type described in
CLAUSES (a), (b), (c) or (f) of SECTION 10.1 with respect to Obligations
participated in by such Participant;
(e) the Borrower shall not be required to pay any amount under this Agreement
that is greater than the amount which it would have been required to pay
had no participating interest been sold; and
(f) such Lender that sells a participating interest in any Loan, Commitment or
other interest to a Participant shall, as agent of the Borrower solely
for the purpose of this Section, record in
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book entries maintained by such Lender the name of its Participants and
the amount such Participants are entitled to receive in respect of any
participating interests.
The Borrower acknowledges and agrees that each Participant, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9 and 7.1.1, shall be considered a Lender.
The Borrower acknowledges and agrees that, for purposes of its obligations under
SECTIONS 10.3 and 10.4, it will not assert that any Lender be entitled to less
than would otherwise be payable to such Lender under such Sections, solely as a
result of a Participant reimbursing such Lender for amounts paid by such Lender.
Each Participant shall only be indemnified for increased costs pursuant to
SECTION 4.3, 4.5 or 4.6 if and to the extent that the Lender which sold such
participating interest to such Participant concurrently is entitled to make, and
does make, a claim on the Borrower for such increased costs. Any Lender that
sells a participating interest in any Loan, Commitment or other interest to a
Participant under this Section shall indemnify and hold harmless the Borrower
and the Administrative Agent from and against any Taxes, penalties, interest or
other costs or losses (including reasonable attorneys' fees and expenses)
incurred or payable by the Borrower or the Administrative Agent as a result of
the failure of the Borrower or the Administrative Agent to comply with its
obligations to deduct or withhold any Taxes from any payments made pursuant to
this Agreement to such Lender or the Administrative Agent, as the case may be,
which Taxes would not have been incurred or payable if such Participant had been
a Non-U.S. Lender that was entitled to deliver to the Borrower, the
Administrative Agent or such Lender, and did in fact so deliver, a duly
completed and valid Internal Revenue Service Form W-8BEN or W-8ECI (or
applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal
Taxes.
SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein shall preclude the
Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE
LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH
MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL
OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY
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EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR
ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THE LOAN DOCUMENTS.
SECTION 10.14. WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE ADMINISTRATIVE AGENT, SUCH LENDER, SUCH ISSUER OR THE
BORROWER IN CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT, EACH LENDER AND EACH ISSUER ENTERING INTO THE LOAN
DOCUMENTS.
-97-
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
AMERICAN ACHIEVEMENT CORPORATION
By: /s/ Sherice P. Bench
---------------------------------------
Title: Chief Financial Officer
Address:
Facsimile No.:
Attention:
THE BANK OF NOVA SCOTIA,
as the Administrative Agent and as a Lender
By: /s/ Jerome Noto
---------------------------------------
Title: Director
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as the Syndication Agent and as a Lender
By:
---------------------------------------
Title: Senior Vice President
Address: 305 Madison Avenue
New York, New York 10017
Facsimile No.: 212-309-8983
Attention:
<Page>
BANKERS TRUST COMPANY,
as the Documentation Agent and as a Lender
By: /s/ Mary Kay Coyle
---------------------------------------
Title: Managing Director
Address:
Facsimile No.:
Attention:
<Page>
SCHEDULE I
DISCLOSURE SCHEDULE TO CREDIT AGREEMENT
ITEM 6.1(a) Organization and Powers.
ITEM 6.1(b) Capitalization.
ITEM 6.1(d) Qualification.
ITEM 6.4 Intellectual Property.
ITEM 6.7 Litigation.
ITEM 6.10 Environmental Matters.
ITEM 6.15 Investigations, Audits, etc.
ITEM 6.16 Employment Matters.
ITEM 7.1.3 Maintenance of Properties; Insurance.
ITEM 7.2.1 Conduct of Business. ITEM 7.2.2(h) Indebtedness to be Paid.
CREDITOR OUTSTANDING PRINCIPAL AMOUNT
ITEM 7.2.3(j) Ongoing Liens.
ITEM 7.2.5(k) Ongoing Investments.
ITEM 7.2.8(c) Existing Contingent Liabilities
ITEM 7.2.13 Management Fees
<Page>
DISCLOSURE SCHEDULE
ITEM 6.1(a)
JURISDICTION OF ORGANIZATION
1. American Achievement Corporation (f/k/a Commemorative
Brands Holding Corp.) Delaware
2. Educational Communications, Inc. Illinois
3. Commemorative Brands, Inc. Delaware
4. TP Holding Corp. (f/k/a TP Acquisition Corp.) Delaware
5. Taylor Publishing Company Delaware
6. Taylor Production Services Company (L.P.) Delaware
7. Taylor Senior Holding Corp. Delaware
8. CBI North America, Inc. Delaware
<Page>
DISCLOSURE SCHEDULE
ITEM 6.1(b)
CAPITALIZATION
<Table>
<Caption>
Entity Authorized Equity Issued and Outstanding Owner
============================================================================================================
1. American Achievement 1,250,000 shares of 1,006,847 shares See attached
Corporation Preferred Stock, par Preferred Stock capitalization
value $.01 per share table.
(American Achievement 809,351 shares of
Corporation Preferred Common Stock
Stock), of which
1,200,000 shares have Warrants to purchase Warrants to
been designated as 21,405 shares of Common purchase 1,585
Series A Preferred Stock at an exercise shares of Common
Stock ($.01 par price of $6.67 per Stock are held
value). (The 25,000 share. The Warrants by Deutsche Bank
shares that were expire on January 31, Securities, Inc.
designated as Series 2008 and if exercised Warrants to
Preferred Stock ($.01 in full represent less purchase 19,820
par value) were than 1.2% of the Common shares of Common
canceled on December Stock on a fully Stock are held
19, 2001.) diluted basis. by CHP III.
1,250,000 shares of
common stock, par value
$.01 per share
(American Achievement
Corporation Common
Stock)
- ------------------------------------------------------------------------------------------------------------
2. Taylor Senior Holding Corp. 1,000 shares of 1,000 Shares of Taylor American
Preferred Stock, par Preferred Stock Achievement
value $.01 per share Corporation
("Taylor Preferred 1,000 Shares of Taylor
Stock") Common Stock
1,000 shares of Common
Stock, par value $.01
per share ("Taylor
Common Stock")
- ------------------------------------------------------------------------------------------------------------
</Table>
<Page>
<Table>
<Caption>
Entity Authorized Equity Issued and Outstanding Owner
============================================================================================================
3. Taylor Holding Co. 50,000 shares of 30,000 shares of Taylor Taylor Senior
Preferred Stock, par Holding Co. Preferred Holding Corp.
value $.01 per share Stock
("Taylor Holding Co.
Preferred Stock")
50,000 shares of Common 30,000 shares of Taylor
Stock, par value $.01 Holding Co. Common Stock
per share (Taylor
Holding Co. Common
Stock")
- ------------------------------------------------------------------------------------------------------------
4. Taylor General Partner 1000 shares of common 10 shares Taylor Holding
stock, par value $1.00 Co.
per share
- ------------------------------------------------------------------------------------------------------------
5. Taylor 99% General Partnership Taylor General
Interest Partner (99% GP
interest)
1% Limited Partnership Taylor Holding
Interest Co. (1% LP
interest)
- ------------------------------------------------------------------------------------------------------------
6. CBI 750,000 shares of 100,000 shares of CHP III (Series
preferred stock, $.01 Series A Preferred A shares)
par value
750,000 shares of 460,985 shares of American
common stock, par value Series B Preferred Achievement
$.01 per share. Corporation
375,985 shares of (Series B and
common stock common shares)
- ------------------------------------------------------------------------------------------------------------
7. CBI North America, Inc. 3,000 shares of common 1,000 shares CBI
stock, par value $.01
per share
- ------------------------------------------------------------------------------------------------------------
8. ECI 1,000 shares of common 1,000 shares American
stock, no par value Achievement
Corporation
</Table>
<Page>
DISCLOSURE SCHEDULE
ITEM 6.1(D)
QUALIFICATION
<Table>
<Caption>
ENTITY JURISDICTIONS
1. Educational Communications, Inc. Illinois
2. American Achievement Corporation None
3. Taylor Senior Holding Corp. None
4. TP Holding Corp. None
5. Taylor Publishing Company California Pennsylvania
Colorado Rhode Island
Connecticut Texas
Delaware Utah
Georgia Vermont
Indiana Wisconsin
Maine Washington DC
Maryland
Michigan
Minnesota
Nebraska
New Jersey
North Carolina
Oklahoma
6. Taylor Production Services Company, L.P. Pennsylvania
Texas
7. CBI North America, Inc. Wisconsin
Texas
8. Commemorative Brands, Inc. Arkansas Alabama
California Arizona
Colorado Washington D.C.
Connecticut Illinois
Florida Hawaii
Georgia New Mexico
Idaho Alaska
Indiana New Hampshire
Iowa Delaware
Kansas
Kentucky
Louisiana
</Table>
<Page>
<Table>
<Caption>
JURISDICTIONS
-------------
Maine
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
</Table>
<Page>
DISCLOSURE SCHEDULE
ITEM 6.4(a)
INTELLECTUAL PROPERTY
TAYLOR PUBLISHING COMPANY
1. The software development agreement dated as of April 2, 1996
between Brian Stewart and Taylor General Partner provides: "If this agreement is
terminated by [Taylor General Partner] for any reason other than for cause,
ownership of the software shall be assigned by [Taylor General Partner] to the
Developer, eighteen (18) months after termination of this agreement." In Taylor
General Partner's opinion, Taylor General Partner terminated this agreement for
cause. Mr. Stewart did not complete the development of the Software in a form
and having capabilities acceptable to Taylor General Partner by April 30, 1996.
The Existing Borrowers currently have possession of the software developed by
Mr. Stewart but have no present plans to use it in their business, and in the
Existing Borrowers' opinion, it is not material to their business.
2. Vision 2000 includes code that is generated by or comprises a part
of toolkits designed for and licensed for such purposes ("toolkit code"). The
shrinkwrap licenses granting permission to Taylor General Partner to license
toolkit code with Vision 2000 have some provisions that may require updating of
Taylor General Partner's shrinkwrap licenses and documentation to fully comply
with the provisions of the toolkit shrinkwrap licenses. In addition, future
versions of the Vision 2000 product may or may not require the purchase of
additional licenses from at least some of the toolkit licensors.
3. Taylor General Partner is unaware whether any employees who worked
on the Ultravision software executed any written agreement with Taylor General
Partner. To Taylor General Partner's knowledge, and except where not material,
all authors (within the meaning of the copyright laws of the United States) of
the Ultravision software were employees (within the meaning of the copyright
laws of the United States) of Taylor General Partner.
4. Various copyright registrations relating to works in Taylor General
Partner's specialty publishing business may be partially owned by the author or
authors of particular works. In addition, as to various of these copyright
registrations, rights may have reverted to the author or authors or particular
works or some authors may be entitled to have rights reverted that have not yet
been reverted. To Taylor General Partner's knowledge and except where not
material, Taylor General Partner either owns copyrights or has been granted
permission by the owner of the copyrights to publish and sell the books (1) that
have been published and sold in the last three years and/or (2) that are
currently being published and sold.
5. Taylor General Partner and Taylor are aware of other businesses
having the words "Taylor Publishing" in their name. To Taylor General Partner's
and Taylor's knowledge, none of these businesses publish school yearbooks
competitively with, or of the general kind published by, Taylor General Partner
or Taylor.
<Page>
EDUCATIONAL COMMUNICATIONS, INC.
1. Pursuant to an Oral Agreement entered into in 1997, between Kyle
Bolstad (a recent college graduate, whose address was 345 Sherman Avenue,
Evanston, IL 60602) and ECI relating to the initial development of ECI's
website, ECI was provided with source code relating to the developed software.
Mr. Bolstad has ceased performing his obligations in accordance with that
certain Oral Agreement entered into in 1997, between Kyle Bolstad and ECI
relating to initial development of ECI's website. Thereafter, ECI engaged Azavar
Technologies Corporation to modify its website. Accordingly, since no formal
written assignment of ownership has been executed, ECI does not possess clear
title to the initial code written by Mr. Bolstad, but instead claims ownership
to it as a "work for hire" under the U.S. Copyright Act.
2. ECI republishes in certain of the biographical directories it
publishes, photographs provided to it by its customers. Since no formal written
agreements have been entered into with such persons authorizing ECI to reproduce
their likeness, these persons could request ECI to remove such photographs from
such biographical directories.
3. In connection with litigation brought in 1999 in the District Court
for the Western District of Missouri by NRCCUA and Student Research, Inc.
against Educational Research Center of America, Inc. ("ERCA"), certain Business
Trade Secrets relating to ECI's relationship with NRCCUA, American Student
List Company, Inc. and Student Research, Inc., and the mechanisms employed by,
ECI, NRCCUA, American Student List Company, Inc. and Student Research, Inc. were
disclosed.
<Page>
DISCLOSURE SCHEDULE
ITEM 6.4(B)
INTELLECTUAL PROPERTY OWNERSHIP
<Table>
<Caption>
OBLIGOR PATENTS: DESCRIPTION:
- -------------------------------------------------------------------------------------------------
Taylor U.S. Patent No. 5,293,475 Electronic Yearbook Publication System
- -------------------------------------------------------------------------------------------------
Taylor U.S. Patent No. 5,428,777 Automated Indexing and Spell Checking of
Yearbooks
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 387,300 Carousel Pin/Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 372,681 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 300,308 Class Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 327,660 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 322,587 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 321,840 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 300,126 Class Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 382,831 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 396,659 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 393,811 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 390,801 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 389,774 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 384,903 Six Stone Diagonal Ribbon Necklace Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 392,204 Five Stone Diagonal Ribbon Necklace Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 389,770 Four Stone Diagonal Ribbon Necklace Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 386,441 Three Stone Diagonal Ribbon Necklace Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 389,769 Two Stone Diagonal Ribbon Necklace Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 392,587 Finger Ring (Swirl Ribbon)
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 423,977 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 396,822 Finger Ring
</Table>
<Page>
<Table>
<Caption>
OBLIGOR PATENTS: DESCRIPTION:
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 393,225 Finger Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 383,704 Angel Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 389,771 Rope Chain Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 393,428 Tennis Bracelet Pendant
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 288,155 Jewelry Display Stand
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 272,806 Packaging Container
- -------------------------------------------------------------------------------------------------
CBI U.S. Patent No. 270,786 Pouch for carrying jewelry or similar
items
- -------------------------------------------------------------------------------------------------
CBI U.S. Serial No. 60/339,572 High Strength, Tarnish Resistant Composition
of Metal
- -------------------------------------------------------------------------------------------------
<Caption>
- -------------------------------------------------------------------------------------------------
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 2,263,634 EZPIX
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 1,471,319 MONEYVISION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 1,483,179 INDEXVISION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 1,501,046 TYPEVISION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 1,541,265 PAGEVISION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 2,032,446 DESIGNCHECK
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 2,198,157 ULTRAVISION(1)
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 2,321,891 YEARZINE
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark No. 2,411,040 NET CHEK
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 751,685 14-K and design
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 750,851 14K and heart design
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,126,269 ACADEMY SERIES BY BALFOUR
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 309229 ACCR and design (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,301,528 ACCR and design
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,301,533 ALLEGRO
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,418,308 AMERICA'S MASTER JEWELER
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 51076 ARTCARVED (Canada)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 98648 ARTCARVED (Costa Rica)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 152660305 ARTCARVED (Spain)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 88415 ARTCARVED (Guatemala)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 383987 ARTCARVED (Mexico)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 81264 ARTCARVED (Panama)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 764668 ARTCARVED
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 495916 ARTCARVED BRIDAL JEWELRY and design (Canada)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 319292 ARTCARVED CLASS RINGS (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,425,520 BAL
</Table>
- ----------
(1) See below under qualification for further information
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,373,682 BALFOUR
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 47033 BALFOUR (Venezuela)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,138,090 BALFOUR "CHOICE OF CHAMPIONS"
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 289600 BALFOUR and house design (hexagon) (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,383,837 BALFOUR FITS YOUR LIFE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,267,451 BALFOUR HOUSE DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 766,694 BELLAIRE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,315,677 CAMPUS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,013,791 CELEBRATIONS OF LIFE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,182,023 CELESTRIUM
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 751,246 CEME AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,053,689 CLASS RINGS LIMITED DESIGN
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 517893 CLASS THOUGHTS (Mexico)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,029,920 CLASS THOUGHTS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,368,860 DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,099,453 DESIGNER
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,305,827 DIMONIQUE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,702,485 DYNALLOY
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,279,766 EVERLASTING
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,293,285 FREEDOM OF CHOICE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,170,084 G L DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,189,715 GENERATIONS OF LOVE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,702,486 GOLDEN DYNALLOY
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,340,604 GOLDEN SADDLE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,229,607 GRADUATE TO GOLD
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,690,099 HERALDRY HOUSE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,936,229 IMAGE INLAY
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 327135 J R AND DESIGN (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 930,499 J R AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,026,934 JEWELRY FOR GENERATIONS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 785,584 JEWELRY'S FINEST CRAFTSMAN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,598,500 JOHN ROBERTS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,063,574 K AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 5893 KEEPSAKE (Barbados)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. UCA11868 KEEPSAKE (Canada)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 284006 KEEPSAKE (Canada)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 2206366 KEEPSAKE (Japan)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 14805 KEEPSAKE (Puerto Rico)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 12163 KEEPSAKE (Turkey)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,476,898 KEEPSAKE
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 105199 KEEPSAKE (Venezuela)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 25576 KEEPSAKE (Venezuela)
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,892,645 KEEPSAKE AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,799,274 KEEPSAKE (Block Letters)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 917,169 KEEPSAKE (Stylized)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 720061 KEYHOLE DESIGN (Canada)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 470255 KEYHOLE DESIGN (Mexico)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,768,581 KEYHOLE DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,805,999 KEYSTONE
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 457258 KEYSTONE AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 460405 KEYSTONE AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,976,772 KEYSTONE (Stylized)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 425800 KEYSTONE (WORD)
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 436961 KEYSTONE (WORD)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,398,462 KEYSTONE AND DESIGN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,356,522 KPS
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 135,814 LAZY W (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 764,669 Lazy W - Design only
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,704,202 LETTERMAN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 0414464 LGB
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,594,125 MASTER
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 755,467 MIDNIGHT STAR
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,985,712 NS
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 137485 P.V.P. (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 884,783 P.V.P.
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,852,353 PANDORA LTD.
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 137507 PERMANENT VALUE PLAN (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 967,840 PERMANENT VALUE PLAN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,596,306 QUALIUM
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,904,358 R. JOHNS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,904,359 R. JOHNS, LTD.
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,331,035 RECOGNIZING LIFE'S ACHIEVEMENTS
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,179,081 REFLECTION SERIES BY BALFOUR
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,095,726 RING OF CHAMPIONS
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 323388 S Design(Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,934,198 NAME-SAKE
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 319,431 SILADIUM (Canada)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 989,301 SILADIUM
- -------------------------------------------------------------------------------------------------
CBI Trademark No. 4815 STARFIRE (Bahamas)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,310,595 STARFIRE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,368,909 THE BALFOUR BLUE BOOK
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,365,476 THE DESIGNER COLLECTION
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,462,750 VALADIUM
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,220,792 WHITE FIRE
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 1,193,591 WHITE FIRE DIAMOND RINGS & DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,427,881 ANNUAL SURVEY OF HIGH ACHIEVERS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,521,769 COLLEGE BOUND DIGEST
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,289,534 COLLEGE-BOUND DIGEST
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,602,930 CRS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,652,639 EDUCATIONAL COMMUNICATIONS
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 54808 EDUCATIONAL COMMUNICATIONS SCHOLARSHIP
(Illinois) FOUNDATION
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,267,915 EDUCATIONAL COMMUNICATIONS SCHOLARSHIP
FOUNDATION
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,227,499 EDUCATIONAL COMMUNICATIONS, INC.
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,279,172 EDUCATIONAL COMMUNICATIONS, INC.
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,562,662 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,279,896 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,269,802 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,286,045 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,270,216 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,306,934 FEATHER DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 2,356,378 HONORING AMERICA'S OUTSTANDING COLLEGE
STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,237,383 HONORING TOMORROW'S LEADERS TODAY
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,233,603 HONORING TOMORROW'S LEADERS TODAY
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,231,889 HONORING TOMORROW'S
LEADERS TODAY
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,262,961 HONORING TOMORROW'S
LEADERS TODAY
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,536,873 HONORING TOMORROW'S
LEADERS TODAY
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,233,557 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,538,526 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark No. 1,584,665 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,235,810 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,214,291 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,253,784 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,510,245 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,269,830 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,228,517 MORTARBOARD DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,578,049 SRS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,453,579 STUDENT REFERRAL SERVICE
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,878,333 THE BEST TEACHERS IN
AMERICA SELECTED BY THE
BEST STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,832,243 THE BEST TEACHERS IN
AMERICA SELECTED BY THE
BEST STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,776,124 THE BEST TEACHERS IN
AMERICA SELECTED BY THE
BEST STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,699,480 THE BEST TEACHERS
IN AMERICA SELECTED BY THE
BEST STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,371,790 THE COLLEGE REFERRAL SERVICE
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 095035 THE NATIONAL DEAN'S LIST
(California)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 19921100546 THE NATIONAL DEAN'S LIST
(Colorado)
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 8958 THE NATIONAL DEAN'S LIST
Connecticut)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number T11487 THE NATIONAL DEAN'S LIST
(Florida)
- ------------------------------------------------------------------------------------------------
ECI Trademark Number T-11653 THE NATIONAL DEAN'S LIST
(Georgia)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 54809 THE NATIONAL DEAN'S LIST
(Illinois)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 10960 THE NATIONAL DEAN'S LIST
(Kentucky)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 19927403 THE NATIONAL DEAN'S LIST
(Maryland)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 47496 THE NATIONAL DEAN'S LIST
(Massachusetts)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 00000000 THE NATIONAL DEAN'S LIST
(New Jersey)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number R-26988 THE NATIONAL DEAN'S LIST
(New York)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 051958 THE NATIONAL DEAN'S LIST
(Texas)
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,531,337 THE NATIONAL DEAN'S LIST
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,247,029 THE NATIONAL DEAN'S LIST
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,763,265 THE NATIONAL DEAN'S LIST
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 0920728 THE NATIONAL DEAN'S LIST
(Virginia)
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 10377 THE NATIONAL DEAN'S LIST
(New Jersey)
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,787,618 THE NATIONAL DEAN'S LIST ALUMNI ASSOCIATION
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,604,536 THE NATIONAL DEAN'S LIST AND DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,534,731 THE NATIONAL DEAN'S LIST AND DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,266,349 THE NATIONAL DEAN'S LIST AND DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,233,602 THE NATIONAL DEAN'S LIST AND DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,229,605 THE NATIONAL DEAN'S LIST AND DESIGN
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,238,293 THE NATIONAL DEAN'S LIST AND DESIGN
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,260,236 THE NATIONAL DEAN'S LIST AND DESIGN
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,596,872 WHO'S WHO AMONG AMERICA'S TEACHERS
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,873,885 WHO'S WHO AMONG AMERICA'S TEACHERS
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,659,216 WHO'S WHO AMONG AMERICA'S TEACHERS
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,899,189 WHO'S WHO AMONG AMERICA'S TEACHERS
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,871,371 WHO'S WHO AMONG AMERICA'S TEACHERS
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 095057 WHO'S WHO AMONG AMERICAN HIGH SCHOOL
(California) STUDENTS
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 19931056646 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Colorado)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 8957 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Connecticut)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number T11488 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Florida)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number T05932 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Florida)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number T05933 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Florida)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number T-11564 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Georgia)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 54810 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Illinois)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 10959 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Kentucky)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 19927404 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Maryland)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 47517 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Massachusetts)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 0920728 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Virginia)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number R-26989 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(New York)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 051959 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(Texas)
- ------------------------------------------------------------------------------------------------------
ECI Trademark Number 10376 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
(New Jersey)
- ------------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,238,888 WHO'S WHO AMONG AMERICAN HIGH SCHOOL STUDENTS
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,044,814 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,755,706 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,267,914 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,571,332 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,541,690 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,606,342 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,221,233 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,215,740 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,221,763 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,259,455 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,245,969 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,296,043 WHO'S WHO AMONG AMERICAN
HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI Trademark Number 0920728 WHO'S WHO AMONG AMERICAN
(Virginia) HIGH SCHOOL STUDENTS
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,222,572 WHO'S WHO REPORTS
- -------------------------------------------------------------------------------------------------
ECI Trademark Number T05934 WHO'S WHO REVIEW
(Florida)
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark Number 1,397,634 WHO'S WHO REVIEW
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark App. No. 76/178,190 ELITEVISION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark App. No. 76/208,495 SAM (and design)
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark App. No. 76/176,954 SMART PAY
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark App. No. 76/343,521 SPECTRA
- -------------------------------------------------------------------------------------------------
Taylor U.S. Trademark App. No. 76/342,917 YB!PRO
- -------------------------------------------------------------------------------------------------
CBI Trademark App. No. 320855 ARTCARVED BRIDAL JEWELRY (Mexico)
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,441,434 BALFOUR SPORTS (STYLIZED)
</Table>
<Page>
<Table>
<Caption>
OBLIGOR TRADEMARKS: MARK:
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 75/111,974 BOY'S ALL*STAR
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 75/484,104 CLASS OF YOUR OWN
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 75/111,746 GIRL'S ALL*STAR
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 75/470,814 GRADUATION CELEBRATION
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 76/129,040 GRADUATION CELEBRATION
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark App. No. 75/111,745 THE ALL STAR SERIES
- -------------------------------------------------------------------------------------------------
CBI U.S. Trademark No. 2,502,361 YOUR BALFOUR COLLEGE RING...THE WEARABLE
RESUME
- -------------------------------------------------------------------------------------------------
ECI U.S. Trademark App. No. 2,479,133 WHO'S WHO AMONG AMERICAN HIGH SCHOOL
STUDENT ALUMNI ASSOCIATION
- -------------------------------------------------------------------------------------------------
Taylor Unregistered Stylized Taylor(2)
- -------------------------------------------------------------------------------------------------
Taylor Unregistered Stylized Taylor Publishing Co.(3)
- -------------------------------------------------------------------------------------------------
Taylor Unregistered Artquest(4)
- -------------------------------------------------------------------------------------------------
Taylor Unregistered Taylor Reunion Services(5)
- -------------------------------------------------------------------------------------------------
Taylor Unregistered Positively For Kids(6)
- -------------------------------------------------------------------------------------------------
<Caption>
- -------------------------------------------------------------------------------------------------
OBLIGOR COPYRIGHTS: DESCRIPTION
- -------------------------------------------------------------------------------------------------
Taylor U.S. Copyright No. TX 5-156-252 ULTRAVISION - version 1.29 Computer
Software Program
- -------------------------------------------------------------------------------------------------
Taylor U.S. Copyright No. TX 5-156-251 VISION 2000 - version 2.047
Computer Software Program
- -------------------------------------------------------------------------------------------------
Taylor U.S. Copyright No. TX 5-156-250 VISION 2000 - version 2.065
Computer Software Program
- -------------------------------------------------------------------------------------------------
Taylor U.S. Copyright No. TXu 940-489 EZPIX Computer Software Program
- -------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 300,742 Birthstone Bouquet Ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 606,818 Boy's all-star ring
- -------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 559,686 Eagle ring
</Table>
(2) Logo, Taylor General Partner has choosen not to register
(3) Logo, Taylor General Partner has chosen not to register
(4) Artquest is the name of a contest sponsored by the Taylor General Partner
over the last two years and will likely sponsor again, Taylor General
Taylor General Partner has chosen not to register
(5) Taylor Reunion Services is the same of the business segment which conducts
reunion services, Taylor General Partner has not pursued registration.
(6) Positively For Kids, is a series of children's books in the speciality
publishing segment, Taylor General Partner has not pursued registration.
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 606,816 Girl's all-star ring
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 427,298 Hole-in-one
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. none
available Journey
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 380,032 Legend
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 584,862 Nobility/royal
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. none
available Radiance
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 557,203 rose ring
- ------------------------------------------------------------------------------------------------------------------------------
CBI U.S. Copyright No. 629,612 tenderness locket
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-052 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume I
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-053 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume II
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-054 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume III
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-055 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume IV
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-056 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume V
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-047 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume VI
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-041 Who's Who Among American High School
Students1999-2000 (34th Edition) Volume VII
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-040 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume VIII
- ------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-048 Who's Who Among American High School
Students 1999-2000 (34th Edition) Volume IX
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-049 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-050 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-051 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-046 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-045 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-377-170 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-044 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-043 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-042 Who's Who Among American High School Students 1999-2000 (34th Edition)
Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-750 Who's Who Among American High School Students 1998-99 (33rd Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-750 Who's Who Among American High School Students 1998-99 (33rd Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-754 Who's Who Among American High School Students 1998-99 (33rd Edition)
Volume II
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-632 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-631 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-747 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-756 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-626 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-748 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-753 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-752 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-749 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-633 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-628 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XIII
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-627 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-751 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-630 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-755 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-037-629 Who's Who Among American High School Students 1998-99
(33rd Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-465 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-501 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-504 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-476 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-498 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-497 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume VI
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-477 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-503 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-502 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-499 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-500 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-508 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-506 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-505 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-507 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-467 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-475 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XVII
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-896-466 Who's Who Among American High School Students 1997-98
(32nd Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-581 Who's Who Among American High School Students 1996-97
(31st Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-580 Who's Who Among American High School Students 1996-97
(31st Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-575 Who's Who Among American High School Students 1996-97
(31st Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-573 Who's Who Among American High School Students 1996-97
(31st Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-576 Who's Who Among American High School Students 1996-97
(31st Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-582 Who's Who Among American High School Students 1996-97
(31st Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-579 Who's Who Among American High School Students 1996-97
(31st Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-567 Who's Who Among American High School Students 1996-97
(31st Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-572 Who's Who Among American High School Students 1996-97
(31st Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-583 Who's Who Among American High School Students 1996-97
(31st Edition) Volume X
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-568 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-569 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-578 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-571 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-574 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-570 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-577 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-691-566 Who's Who Among American High School Students 1996-97
(31st Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-945 Who's Who Among American High School Students 1995-96
(30th Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-947 Who's Who Among American High School Students 1995-96
(30th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-941 Who's Who Among American High School Students 1995-96
(30th Edition) Volume III
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-939 Who's Who Among American High School Students 1995-96
(30th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-934 Who's Who Among American High School Students 1995-96
(30th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-942 Who's Who Among American High School Students 1995-96
(30th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-933 Who's Who Among American High School Students 1995-96
(30th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-946 Who's Who Among American High School Students 1995-96
(30th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-943 Who's Who Among American High School Students 1995-96
(30th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-930 Who's Who Among American High School Students 1995-96
(30th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-937 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-938 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-936 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-940 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XIV
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-935 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-931 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-932 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-427-944 Who's Who Among American High School Students 1995-96
(30th Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-314 Who's Who Among American High School Students 1994-95
(29th Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-000 Who's Who Among American High School Students 1994-95
(29th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-003 Who's Who Among American High School Students 1994-95
(29th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-310 Who's Who Among American High School Students 1994-95
(29th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-417 Who's Who Among American High School Students 1994-95
(29th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-198-996 Who's Who Among American High School Students 1994-95
(29th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-002 Who's Who Among American High School Students 1994-95
(29th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-198-998 Who's Who Among American High School Students 1994-95
(29th Edition) Volume VIII
</Table>
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<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-313 Who's Who Among American High School Students 1994-95
(29th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-004 Who's Who Among American High School Students 1994-95
(29th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-312 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-416 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-198-999 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-203-311 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-001 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-198-997 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-005 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-199-006 Who's Who Among American High School Students 1994-95
(29th Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-467 Who's Who Among American High School Students 1993-94
(28th Edition) Volume I
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-464 Who's Who Among American High School Students 1993-94
(28th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-498 Who's Who Among American High School Students 1993-94
(28th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-470 Who's Who Among American High School Students 1993-94
(28th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-497 Who's Who Among American High School Students 1993-94
(28th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-463 Who's Who Among American High School Students 1993-94
(28th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-499 Who's Who Among American High School Students 1993-94
(28th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-466 Who's Who Among American High School Students 1993-94
(28th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-469 Who's Who Among American High School Students 1993-94
(28th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-500 Who's Who Among American High School Students 1993-94
(28th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-501 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-465 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XII
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-502 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-468 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-940-503 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-980-012 Who's Who Among American High School Students 1993-94
(28th Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-809 Who's Who Among American High School Students 1992-93
(27th Edition) Volume 1
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-817 Who's Who Among American High School Students 1992-93
(27th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-816 Who's Who Among American High School Students 1992-93
(27th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-819 Who's Who Among American High School Students 1992-93
(27th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-818 Who's Who Among American High School Students 1992-93
(27th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-821 Who's Who Among American High School Students 1992-93
(27th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-815 Who's Who Among American High School Students 1992-93
(27th Edition) Volume VII
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-820 Who's Who Among American High School Students 1992-93
(27th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-814 Who's Who Among American High School Students 1992-93
(27th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-813 Who's Who Among American High School Students 1992-93
(27th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-812 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-806 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-810 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-808 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-807 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-752-811 Who's Who Among American High School Students 1992-93
(27th Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-348 Who's Who Among American High School Students 1991-92
(26th Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-459-328 Who's Who Among American High School Students 1991-92
(26th Edition) Volume II
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-345 Who's Who Among American High School Students 1991-92
(26th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-344 Who's Who Among American High School Students 1991-92
(26th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-349 Who's Who Among American High School Students 1991-92
(26th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-347 Who's Who Among American High School Students 1991-92
(26th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-460-663 Who's Who Among American High School Students 1991-92
(26th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-459-329 Who's Who Among American High School Students 1991-92
(26th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-460-661 Who's Who Among American High School Students 1991-92
(26th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-346 Who's Who Among American High School Students 1991-92
(26th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-459-330 Who's Who Among American High School Students 1991-92
(26th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-459-327 Who's Who Among American High School Students 1991-92
(26th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-463-343 Who's Who Among American High School Students 1991-92
(26th Edition) Volume XIII
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-460-662 Who's Who Among American High School Students 1991-92
(26th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-460-660 Who's Who Among American High School Students 1991-92
(26th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-452-658 Who's Who Among American High School Students 1990-91
(25th Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-208-049 Who's Who Among American High School Students 1990-91
TX 3 452-152 (25th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-208-051 Who's Who Among American High School Students 1990-91
TX 3-452-410 (25th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-461-724 Who's Who Among American High School Students 1990-91
(25th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-452-035 Who's Who Among American High School Students 1990-91
(25th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-458-036 Who's Who Among American High School Students 1990-91
(25th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-461-725 Who's Who Among American High School Students 1990-91
(25th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-461-728 Who's Who Among American High School Students 1990-91
(25th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-208-053 Who's Who Among American High School Students 1990-91
TX 3-452-412 (25th Edition) Volume IX
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-208-050 Who's Who Among American High School Students 1990-91
TX 3-452-409 (25th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-208-052 Who's Who Among American High School Students 1990-91
TX 3-452-411 (25th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-458-010 Who's Who Among American High School Students 1990-91
(25th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-461-727 Who's Who Among American High School Students 1990-91
(25th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-461-726 Who's Who Among American High School Students 1990-91
(25th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-458-011 Who's Who Among American High School Students 1990-91
(25th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-217 Who's Who Among American High School Students 1989-90
(24th Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-220 Who's Who Among American High School Students 1989-90
(24th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-216 Who's Who Among American High School Students 1989-90
(24th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-970-617 Who's Who Among American High School Students 1989-90
(24th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-219 Who's Who Among American High School Students 1989-90
(24th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-212 Who's Who Among American High School Students 1989-90
(24th Edition) Volume VI
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-215 Who's Who Among American High School Students 1989-90
(24th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-962-214 Who's Who Among American High School Students 1989-90
(24th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-787 Who's Who Among American High School Students 1989-90
(24th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-213 Who's Who Among American High School Students 1989-90
(24th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-784 Who's Who Among American High School Students 1989-90
(24th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-786 Who's Who Among American High School Students 1989-90
(24th Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-992-218 Who's Who Among American High School Students 1989-90
(24th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-785 Who's Who Among American High School Students 1989-90
(24th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-996-783 Who's Who Among American High School Students 1989-90
(24th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-181 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-176 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume II
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-179 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-177 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-180 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-178 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-184 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-182 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-740-183 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-732-749 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-735-322 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-732-396 Who's Who Among American High School Students 1988-89
(23rd Edition) Volume XII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-043 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 1
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-046 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 2
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-044 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 3
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-047 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 4
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-042 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 5
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-483-045 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 6
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-113 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 7
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-112 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 8
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-264 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 9
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-263 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 10
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-262 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 11
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-489-261 Who's Who Among American High School Students 1987-88
(22nd Edition) Volume 12
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-243-677 Who's Who Among American High School Students 1986-87
(21st Edition)
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-033-739 Who's Who Among American High School Students 1985-86
(20th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-732-076 Who's Who Among American High School Students 1984-85
(19th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-596-312 Who's Who Among American High School Students 1983-84
(18th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-253-070 Who's Who Among American High School Students 1982-83
(17th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-062-415 Who's Who Among American High School Students 1981-82
(16th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 829-425 Who's Who Among American High School Students 1980-81
(15th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 727-543 Who's Who Among American High School Students 1979-80
(14th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 727-544 Who's Who Among American High School Students 1978-79
(13th Edition)
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 205-503 Who's Who Among American High School Students 1977-78
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 927898 Who's Who Among American High School Students 1976-77
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 850568 Who's Who Among American High School Students 1975-76
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 702663 Who's Who Among American High School Students 1974-75
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 613480 Who's Who Among American High School Students 1973-74
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 526898 Who's Who Among American High School Students 1972-73
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 401099 Who's Who Among American High School Students 1971-72
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 292395 Merit's Who's Who Among American High School Students
1970-71
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 190806 Merit's Who's Who Among American High School Students
1969-1970
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 122921 Merit's Who's Who Among American High School Students
1968-1969
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 65657 Merit's Who's Who Among American High School Students
1967-1968
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. A 984826 Merit's Who's Who Among American High School Students
A 958282 1966-1967
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-057 WHO'S WHO AMONG AMERICA'S TEACHERS 2000 (6TH EDITION)
VOLUME I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-058 WHO'S WHO AMONG AMERICA'S TEACHERS 2000 (6TH EDITION)
VOLUME II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-059 WHO'S WHO AMONG AMERICA'S TEACHERS 2000 (6TH EDITION)
VOLUME III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-073-060 WHO'S WHO AMONG AMERICA'S TEACHERS 2000 (6TH EDITION)
VOLUME IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-833-393 Who's Who Among America's Teachers 1998 (5th Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-833-394 Who's Who Among America's Teachers 1998 (5th Edition)
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-833-391 Who's Who Among America's Teachers 1998 (5th Edition)
Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-833-392 Who's Who Among America's Teachers 1998 (5th Edition)
Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-469-764 Who's Who Among America's Teachers 1996 (4th Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-469-767 Who's Who Among America's Teachers 1996 (4th Edition)
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-469-765 Who's Who Among America's Teachers 1996 (4th Edition)
Volume III
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-469-766 Who's Who Among America's Teachers 1996 (4th Edition)
Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-899-380 Who's Who Among America's Teachers 1994 (3rd Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-899-381 Who's Who Among America's Teachers 1994 (3rd Edition)
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-423-206 Who's Who Among America's Teachers 1992 (2nd Edition)
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-426-091 Who's Who Among America's Teachers 1992 (2nd Edition)
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2-931-185 Who's Who Among America's Teachers (1st Edition)
1989-90
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-439-844 THE NATIONAL DEAN'S LIST 2000-2001 (24TH EDITION)
VOLUME I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-439-846 THE NATIONAL DEAN'S LIST 2000-2001 (24TH EDITION)
VOLUME II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-439-845 THE NATIONAL DEAN'S LIST 2000-2001 (24TH EDITION)
VOLUME III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-313-157 THE NATIONAL DEAN'S LIST 1999-2000 (23RD EDITION)
VOLUME I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-313-156 THE NATIONAL DEAN'S LIST 1999-2000 (23RD EDITION)
VOLUME II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-054-154 The National Dean's List 1998-1999 22nd Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 5-052-410 The National Dean's List 1998-1999 22nd Edition
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-888-637 The National Dean's List 1997-1998 21st Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-885-940 The National Dean's List 1997-1998 21st Edition
Volume II
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-586-406 The National Dean's List 1996-1997 20th Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-586-407 The National Dean's List 1996-1997 20th Edition
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-423-941 The National Dean's List 1995-1996 19th Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-423-940 The National Dean's List 1995-1996 19th Edition
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-141-994 The National Dean's List 1994-1995 18th Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 4-134-540 The National Dean's List 1994-1995 18th Edition
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-461 The National Dean's List 1993-94 17th Edition Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-646-462 The National Dean's List 1993-94 17th Edition Volume
II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-673-315 The National Dean's List 1992-93 16th Edition Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-673-314 The National Dean's List 1992-93 16th Edition Volume
II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-440-206 The National Dean's List 1991-92 15th Edition
Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-440-207 The National Dean's List 1991-92 15th Edition
Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 3-185-101 The National Dean's List 1990-91 14th Edition Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
TX 3-185-102 The National Dean's List 1990-91 14th Edition Volume
TX 3-431-218 II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 951-961 The National Dean's List 1989-90 13th Edition Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 951 960 The National Dean's List 1989-90 13th Edition Volume
II
</Table>
<Page>
<Table>
<Caption>
OBLIGOR COPYRIGHTS: DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 750 950 The National Dean's List 1988-89 12th Edition Volume I
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 750 949 The National Dean's List 1988-89 12th Edition Volume
II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 463-958 The National Dean's List 1987-88 11th Edition Volume 1
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 463-959 The National Dean's List 1987-88 11th Edition Volume 2
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 317-119 The National Dean's List 1986-87 10th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 2 011-683 The National Dean's List 1985-86 9th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1 711-881 The National Dean's List 1984-85 8th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1 596-311 The National Dean's List 1983-84 7th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-253-069 The National Dean's List 6th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 1-057-142 The National Dean's List 5th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 821-905 The National Dean's List 4th Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 727-542 The National Dean's List 3rd Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 727-541 The National Dean's List 2nd Edition
- -----------------------------------------------------------------------------------------------------------------------------------
ECI U.S. Copyright No. TX 210-053 The National Dean's List
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<Caption>
UNREGISTERED COPYRIGHTS: DESCRIPTION:
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Database(s) of the identity of and information
pertaining to customers
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High School Students
Copyright Office 2000-2001 (35th Edition) Volume I
</Table>
<Page>
<Table>
<Caption>
UNREGISTERED COPYRIGHTS: DESCRIPTION:
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume II
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume III
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume IV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume V
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume VI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume VII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume VIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume IX
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume X
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High School Students
COPYRIGHT OFFICE 2000-2001 (35th Edition) Volume XI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI APPLICATION SUBMITTED TO Who's Who Among American High
COPYRIGHT OFFICE School Students 2000-2001 (35th Edition) Volume XII
</Table>
<Page>
<Table>
<Caption>
UNREGISTERED COPYRIGHTS: DESCRIPTION:
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High
Copyright Office School Students 2000-2001 (35th Edition) Volume XIII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High
Copyright Office School Students 2000-2001 (35th Edition) Volume XIV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High
Copyright Office School Students 2000-2001 (35th Edition) Volume XV
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High
Copyright Office School Students 2000-2001 (35th Edition) Volume XVI
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High
Copyright Office School Students 2000-2001 (34th Edition) Volume XVII
- -----------------------------------------------------------------------------------------------------------------------------------
ECI Application submitted to Who's Who Among American High School Students
Copyright Office 2000-2001 (35th Edition) Volume XVIII
- -----------------------------------------------------------------------------------------------------------------------------------
<Caption>
OBLIGOR INTERNET DOMAIN NAME:
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorpub.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunions.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunions.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunion.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunion.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorpublishing.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorpublishing.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorpublishing.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunionservices.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor taylorreunionservices.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor tayloryearbooks.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor tayloryearbooks.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor tayloryearbooks.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor yearbookpaymentcenter.com
</Table>
<Page>
<Table>
<Caption>
OBLIGOR INTERNET DOMAIN NAME:
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor yearbookpaymentcenter.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor yearbookpaymentcenter.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor yearzine.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor ordermyyearbook.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor ordermyyearbook.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor ordermyyearbook.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor reunionmates.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativebrands.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativebrands.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativebrands.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeedition.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeedition.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeedition.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeeditions.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeeditions.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor commemorativeeditions.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor buymyyearbook.com
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor buymyyearbook.net
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor buymyyearbook.org
- -----------------------------------------------------------------------------------------------------------------------------------
Taylor Available Not Ours taylorfinebooks.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI cbi-graphics.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI graduationrings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI artcarved.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI balfoursports.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI balfour-sports.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI balfourgrad.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI cbi-insignia.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI balfour.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI cbi-vpn.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI rjohns.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI cbi-inet.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI myring.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI artcarvedhigh.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI Owned Not Ours irings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI artcarvedgrad.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI cbi-rings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI celebrationsoflife.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI iclassring.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI iclassrings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI highschoolclassring.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI highschoolclassrings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI Owned Not Ours graduations.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI Available Not Ours celebrationrings.com
- -----------------------------------------------------------------------------------------------------------------------------------
CBI Available Not Ours virginiatech2000.com
</Table>
<Page>
<Table>
<Caption>
OBLIGOR INTERNET DOMAIN NAME:
- -----------------------------------------------------------------------------------------------------------------------------------
CBI artcarved.cc
- ----------------------------------------------------------------------------------------------------------------------------------
CBI myclassrings.cc
- ----------------------------------------------------------------------------------------------------------------------------------
CBI highschoolclassring.cc
- ----------------------------------------------------------------------------------------------------------------------------------
CBI classring.cc
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Available Not Ours aboutofficialring.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI officialringonline.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI officialring.net
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Available Not Ours cbiwebjam.net
- ----------------------------------------------------------------------------------------------------------------------------------
CBI officialringcentral.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI officialring.org
- ----------------------------------------------------------------------------------------------------------------------------------
CBI e-officialring.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI myofficialring.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI officialring.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Available Not Ours cbiwebjam.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI deans-list.com(7)
- ----------------------------------------------------------------------------------------------------------------------------------
ECI eci-online.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI eci-scholar.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI ecisucks.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI eci-whoswho.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI eci-whoswho.cc
- ----------------------------------------------------------------------------------------------------------------------------------
ECI honoring.cc
- ----------------------------------------------------------------------------------------------------------------------------------
ECI honoring.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI honoring.net
- ----------------------------------------------------------------------------------------------------------------------------------
ECI honoring.org
- ----------------------------------------------------------------------------------------------------------------------------------
ECI whos-who.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI whoswho-hs.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI whoswhosucks.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI whoswho-teachers.com
- ----------------------------------------------------------------------------------------------------------------------------------
ECI ECSF.org
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Artcarved.biz
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Artcarved.info
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Artcarvedbridal.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Artcarvedwedding.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Balfour.biz
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Balfour.info
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Keepsakediamond.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Artcarveddiamond.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Balfour-rings.com
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Taylorpublishing.biz
- ----------------------------------------------------------------------------------------------------------------------------------
CBI Add Taylorpublishing.info
- ----------------------------------------------------------------------------------------------------------------------------------
- -----------------------
(7) Although registered on behalf of the Company, Network Solutions' WHOIS
database lists the registrant for the domain names DEANS-LIST.COM,
ECI-SCHOLAR.COM, WHOS-WHO.COM AND WHOSWHO-TEACHERS.COM AS "whos who in
american high schools".
<Page>
CBI Add Taylorpublishingcommercial.com
- ----------------------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
DISCLOSURE SCHEDULE
ITEM 6.4(c)
INTELLECTUAL PROPERTY INFRINGEMENT
EDUCATIONAL COMMUNICATIONS, INC.
1. Incorporated here by reference are items 2 and 3 of ITEM 6.7 of the
Disclosure Schedule to the Credit Agreement.
2. ECI received a letter from the American Library Association ("ALA")
dated June 29, 2000 alleging that ECI was misusing the name of the ALA. On July
11, 2000, ECI sent the ALA a response to its letter. ECI subsequently received a
letter dated September 6, 2000 from the ALA stating that ECI's response in its
July 11, 2000 letter was unsatisfactory. On September 28, 2000, counsel for ECI
sent a letter to counsel for the ALA indicating that ECI had elected to cease
the activities discussed in the ALA's letters. Since the mailing of the
September 28, 2000 letter, neither counsel for ECI nor ECI has had any
additional communications with the ALA. Obligors represent and warrant that this
matter could not reasonably be expected to have a Material Adverse Effect.
<Page>
DISCLOSURE SCHEDULE
ITEM 6.7
LITIGATION
1. Incorporated here by reference are items 1, 3, 4 and 5 of ITEM 6.15
of the Disclosure Schedule to the Credit Agreement.
2. On March 19, 1999, William Kannanack, counsel for National
Educational Publications, Inc., a Florida corporation, and defendant in certain
copyright and unfair competitions actions subsequently brought by the
Educational Communications Scholarship Foundation (the "Foundation"), alleged
that certain of the practices of American Student List Company, Inc. and ECI not
renting the use of jointly developed names to third parties was actionable under
the Sherman Act. On March 29, 1999, after consultation with antitrust counsel
for ECI (Arnold & Porter, which previously had issued a written opinion to ECI
relating to this practice), ECI counsel spoke with Mr. Kannanack by telephone
regarding his allegations and informed Mr. Kannanack that his allegations were
without merit. Since that telephone call, no additional communications have been
had with Mr. Kannanack regarding his allegations. The Borrower represents and
warrants that this matter could not reasonably be expected to have a Material
Adverse Effect.
3. In connection with litigation brought in 1999 in the District Court
for the Western District of Missouri by NRCCUA and SRI against Educational
Research Center of America, Inc. ("ERCA"), Jan Stumacher, principal of ERCA,
Rhina International, Inc. and Student Marketing Group, Inc., threatened
litigation involving ECI's, American Student List Company, Inc.'s, NRCCUA's and
SRI's practice of not renting the use of jointly developed names to third
parties. The District Court denied NRCCUA's and SRI's motion for a preliminary
injunction against ERCA and NRCCUA and SRI subsequently moved to dismiss the
action with prejudice. ERCA filed a motion to recover attorneys' fees and costs.
The District Court denied ERCA's motion. The period for filing appeals in this
action has passed. There has been no further communications between the parties
on this matter. The Borrower represents and warrants that this matter could not
reasonably be expected to have a Material Adverse Effect.
4. Incorporated here by reference is item 2 of ITEM 6.4(c)
(Intellectual Property Infringement) of the Disclosure Schedule to the Credit
Agreement.
<Page>
DISCLOSURE SCHEDULE
ITEM 6.10
ENVIRONMENTAL MATTERS
1. Phase I Environmental Site and Regulatory Assessment for facility
located on Railroad Drive, El Paso, Texas, prepared by Malcolm Pirnie, Inc.,
dated November 3, 1999.
2. Phase I Environmental Site and Regulatory Assessment for facility
located on Dyer Street, El Paso, Texas, prepared by Malcolm Pirnie, Inc., dated
November 3, 1999.
3. Phase I Environmental Site and Regulatory Assessment for facility
located in San Angelo, Texas, prepared by Malcolm Pirnie, Inc., dated November
3, 1999.
4. Phase I Environmental Site and Regulatory Assessment for facility
located in Dallas, Texas, prepared by Malcolm Pirnie, Inc., dated November 3,
1999.
5. Phase I Environmental Site and Regulatory Assessment for facility
located in Malvern, Pennsylvania, prepared by Malcolm Pirnie, Inc., dated
November 3, 1999.
6. Phase I Environmental Site Assessment and Compliance Review for
facility located on Osborne Drive, El Paso, Texas, prepared by GaiaTech
Incorporated, dated July 14, 2000.
7. Phase I Environmental Site Assessment and Compliance Review for
facility located on Intermodal Drive, Louisville, Kentucky, prepared by GaiaTech
Incorporated, dated July 13, 2000.
8. Phase I Environmental Site Assessment and Compliance Review for
facility located on Circle S Road, Austin, Texas, prepared by GaiaTech
Incorporated, dated July 13, 2000.
<Page>
DISCLOSURE SCHEDULE
ITEM 6.15
INVESTIGATIONS; AUDITS
1. Taylor General Partner and Taylor are currently under audit by the
Internal Revenue Service for the tax periods January 1, 1991 through December
31, 1998. Various adjustments (as detailed below) have been proposed by the
Internal Revenue Service relating to Taylor General Partner and Taylor. Taylor
General Partner and Taylor agree with these adjustments. Pursuant to the
Purchase Agreement dated as of December 17, 1999 by and among Taylor Holding
Co., Taylor General Partner and Insilco Corporation (the "Purchase Agreement"),
Insilco Corporation has agreed to indemnify Existing Borrowers for any liability
resulting from this audit). The expected completion of the audit is 60-90 days
from March 2002.
The amount of the proposed adjustments (not the resulting tax) is as follows:
<Table>
1991 $ 2,026,920
1992 $ (106,585)
1993 $ 169,313
1994 $ 229,482
1996 $ 161,456
1997 $ 0.00
1998 $ 0.00
</Table>
2. Waivers of statutes of limitations: Taylor General Partner and
Taylor have granted statute waivers to the Internal Revenue Service for the
years 1991, 1992, 1993, 1994, 1995 and 1996 until September 30, 2001. The year
1997 has been extended until September 30, 2002 and the year 1998 has not been
extended.
3. The State of Michigan sales tax audit of Taylor General Partner for
the period January, 1, 1996 through October 31, 1999 resulted in a zero
assessment. The State of Michigan Single Business Tax audit for the period of
December 31, 1999 resulted in an assessment of $38,918, which Insilco
Corporation has appealed to the State of Michigan. Pursuant to the Purchase
Agreement, Insilco Corporation has agreed to indemnify Existing Borrowers for
any assessment resulting from this audit.
4. Commemorative Brands, Inc. has been notified by the State of
Kentucky that it intends to audit the tax periods January 1998 through July 2002
starting in September of 2002.
5. In a letter dated January 29, 2002, Educational Communications,
Inc.("ECI") was notified by the Federal Trade Commission ("FTC") that, with
respect to ECIs'
<Page>
role in a survey conducted by the National Research Center for College and
University Admissions ("NRCCUA"), the FTC is requesting copies of agreements,
contracts, correspondence or other documents relating to the relationship
between (i) ECI and Student Research, Inc. ("SRI"), who owns the NRCCUA trade
name and trademark, (ii) ECI and/or SRI and NRCCUA, and (iii) ECI and/or SRI and
American Student Lists, who, together with ECI, funds the NRCCUA survey. ECI is
in the process of providing the requested data as of the Closing Date.
<Page>
DISCLOSURE SCHEDULE
ITEM 6.16
EMPLOYMENT MATTERS
UNION CONTRACTS
1. Management Union Agreement between Taylor and Graphic
Communications International Union Local 367M, effective February 28, 2000
through March 5, 2004.
2. Management Union Agreement between Taylor General Partner and
Graphic Communications International Union Local 367M, effective July 3, 2000
through July 7, 2003.
3. Agreement between CBI and Local Union No. 1751, Southern Council of
Industrial Workers, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, effective June 1, 2000 through May 31, 2003.
EMPLOYEE GRIEVANCES
4. None.
EMPLOYMENT CONTRACTS
5. Employment Agreement between CBI and David Fiore, dated July 13,
1999 and effective August 2, 1999, and as amended and effective on February 1,
2002.
6. Employment Agreement between CBI and Sherice P. Bench dated as of
December 16, 1996.
7. Employment Agreement between CBI and Parke H. Davis, dated as of
December 16, 1996.
8. Employment Agreement between CBI and Norman C. Smith, dated as of
January 14, 2000.
9. Employment Agreement between CBI and Donald J. Percenti, dated as
of December 16, 1996.
10. Employment Agreement between CBI and Charlyn Cook, dated as of
December 16, 1996.
11. Employment Agreement between ECI and Paul C. Krouse, dated as of
March 30, 2001, and as amended and restated on September 1, 2001.
<Page>
12. Employment Agreement between ECI and Ann W. Krouse, dated as of
March 30, 2001, as amended and restated on September 1, 2001.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.1.3
MAINTENANCE OF PROPERTIES; INSURANCE
A. MAINTENANCE OF PROPERTIES
Samples, promotional materials and other similar items of property,
may not be at the locations referred to below. Such property, which constitutes
approximately 1-2% of the total amount of property owned by the Obligors, are at
various locations of vendors (including sales representatives and college
bookstores).
AMERICAN ACHIEVEMENT CORPORATION
OFFICE LOCATION: 7211 Circle S Road, Austin, TX 78745
COMMEMORATIVE BRANDS, INC. AND CBI NORTH AMERICA, INC.
OWNED PROPERTY:
1. 7211 Circle S Road, Austin, TX 78745
LEASED PROPERTY (applies to Commemorative Brands, Inc. only; CBI North
America, Inc. does not have any leased properties):
1. 7101 Intermodal Drive, Louisville, KY
2. 6404 Burleson Road, Suite 120, Austin, TX
3. 4605 Osborn, El Paso, TX
4. Fulton #820, Parque Industrial Antonio J. Bermudez, Juarez,
Chihuahua, Mexico
MANUFACTURER AND REFINERS:
1. Stern Leach, Inc., 49 Pearl Street, Attleboro, MA;
Refiner
2. Pease and Curren, Inc., 75 Pennsylvania Avenue, Warwick, RI;
Refiner
3. Hereaus PPM, Inc., 65 Euclid Avenue, Newark, NJ;
Refiner
<Page>
4. Metalor USA Refining Corporation, 225 John Diestch Boulevard,
North Attleboro, MA;
Refiner
5. OK Casting, 3520 Charleston Road, Norman, OK;
Contract Manufacturer
6. AuraFin Corporation, 770 International Parkway, Sunrise, FL;
Contract Manufacturer
7. Dunhams Jewelry Manufacturing, 7365 Remeon, Suite 8204,
El Paso, TX;
Contract Manufacturer
8. Richards and West, Inc., 1255 University Avenue, Rochester, NY;
Contract Manufacturer
9. Herbert Stephan, Hauptstrasse 282 Idar-Oberstein Germany
Contract Manufacturer (manufactures synthetic stones and holds
approximately $70,000 worth of stones belonging to CBI)
10. Metech International Inc., 120 Mapleville Main Street, P.O. Box
500 Mapleville, RI;
Refiner
11. Technic Inc., 1 Spectacle Street, Cranston, RI; Fabricator
12. Angelo, Inc., 8255 Firestone Boulevard, Suite 500, Downey, CA;
Contract Manufacturer
13. Sippi Metals, 1720 North Elston Ave, Chicago, IL;
Refiner
14. Empresa Plat-Mex, S.A., Rosas Moreno #68 Col. San Rafael, C.P.
06470 Mexico, D.F. Mexico;
Contract Manufacturer
15. AMC Company, 2412 Greenlawn Parkway, Austin, TX Refiner
16. Carriage Casting, 5935 Cromo Dr., El Paso, TX Contract
Manufacturer
17. Henry Marnolejo Jewelry Shop, 4667 Montana Ave., El Paso, TX
Contract Manufacturer
18. CBC Jewelry Shop, 5024 Donipahn Drive, Suite 4, El Paso, TX
Contract Manufacturer
19. American Mullion, Inc., 125 Selandia Lane, Carson, CA Fabricator
<Page>
TAYLOR PUBLISHING COMPANY
OWNED PROPERTY:
1. 1550 W. Mockingbird Lane, Dallas TX.
LEASED PROPERTY:
1. 67 Great Valley Parkway, Malvern PA.
2. 2027 Industrial Avenue, San Angelo TX.
3. 1821 Knickerbocker Road, San Angelo TX.
4. 3134 A Executive Drive, San Angelo TX.
5. 10365 Railroad Drive, El Paso TX.
WAREHOUSES:
6. Grand Logistics Services (Owner, Willie Chavez), 10574 King William
Drive, Dallas, TX.
TAYLOR PRODUCTION SERVICES COMPANY, L.P.
OFFICE LOCATION: 1550 W. Mockingbird Lane, Dallas TX.
EDUCATIONAL COMMUNICATIONS, INC.
OFFICE LOCATION: 721 N. McKinley Road, Lake Forest, Illinois 60045
LEASED PROPERTY:
1. 721 N. McKinley Road, Lake Forest, Illinois 60045. Location of
company headquarters and books and records.
2. Acorn Self-Storage, Storage Room #5243, 1255 Town Line Road,
Mundelein, Illinois 60060. Houses old computer tapes.
PRINTERS, MAILING AND FULFILLMENT HOUSES:
1. Quebecor World, 1133 County Seat, Taunton, MA 02780; Printer.
2. RR Donnelly, 1145 Conwell Ave., Willard OH 44890; Printer.
3. RUF Enterprises, 7544 Oakton, Niles, IL 60714; Plaque, Jewelry,
Patch order fulfillment.
<Page>
4. International Decal, 3332 Commercial Ave., Northbrook, IL 60062;
Mugs and Ornaments order fulfillment.
5. Total Promotions, 1340 Old Skokie Road, Highland Park, IL 60035;
Portfolios, Pens, Tote Bags fulfillment.
6. Mailways Enterprises, 6105 Factory Road, Crystal Lake, IL 60014;
Printed Materials.
7. Midwest Compuservice, 9800 S. Industrial Drive, Bridgeview, IL
60455; Printed Materials.
8. XL Marketing, 845 Bonnie Lane, Elk Grove Village, IL 60007; Printed
Materials.
None of the above locations for ECI will at any time have more than
$100,000 worth of inventory or other assets individually, or more than $500,000
worth of inventory or other assets in the aggregate.
TP HOLDING CORP.
Office Location: 1550 W. Mockingbird Lane, Dallas, TX
TAYLOR SENIOR HOLDING CORP.
Office Location: 1550 W. Mockingbird Lane, Dallas, TX
B. INSURANCE
SEE ATTACHED COPY OF ENVIRONMENTAL INSURANCE CERTIFICATE.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.1
CONDUCT OF BUSINESS
PRINTING & PUBLISHING. Taylor General Partner and Taylor manufacture
and sell student-created yearbooks in elementary schools, middle schools, high
schools and colleges. Taylor General Partner and Taylor manufacture and sell
customer-created fine books to governmental entities. Taylor General Partner and
Taylor also print commercial brochures, commercial books, and promotional books
and materials. ECI publishes three educational directories, WHO'S WHO AMONG
AMERICAN HIGH SCHOOL STUDENTS, THE NATIONAL DEAN'S LIST, and WHO'S WHO AMONG
AMERICA'S TEACHERS, which are sold to the individuals honored in each
publication, as well as achievement recognition directories.
SCHOOL PRODUCTS AND SERVICES. Taylor General Partner and Taylor
distribute and sell school related non-print products and provide management
services to elementary schools, middle schools, high schools and colleges.
COMPUTER SOFTWARE AND HARDWARE. Taylor General Partner and Taylor
develop and sell computer software and distribute computer hardware and
photographic equipment in conjunction with their printing and publishing
services.
CLASS RINGS. CBI and CBI North America, Inc. ("CBI-N.A.") produce,
distribute and sell class rings to the high school and college markets.
FINE PAPER PRODUCTS. CBI produces and markets a variety of fine paper
products, including customized graduation announcements, name cards, thank-you
stationery, business cards, diplomas, mini-diplomas, certificates, appreciation
covers, diploma covers and fine paper accessory items.
PERSONALIZED FAMILY JEWELRY. CBI and CBI-N.A. produce, distribute and
sell personalized family jewelry, including rings and pendants with children's
names.
CONSUMER SPORTS JEWELRY. CBI and CBI-N.A. produce, distribute and sell
licensed consumer sports jewelry, made for fans to show support for their
favorite team.
PROFESSIONAL SPORTS CHAMPIONSHIP JEWELRY. CBI and CBI-N.A. produce,
distribute and sell professional sports championship jewelry to various sports
teams to commemorate accomplishments and achievements such as winning
championship titles.
RECOGNITION PRODUCTS. CBI and CBI-N.A. produce, distribute and sell
corporate achievement jewelry designed to commemorate accomplishments and
achievements in corporate or business endeavors and to express pride in one's
affiliations with a particular organization. ECI produces and distributes
scholastic achievement products designed to recognize and honor the achievements
of top high school students, college students and teachers.
<Page>
DIRECT MARKETING. Taylor General Partner, CBI, CBI-N.A. and ECI direct
market products and services. In conjunction with these activities, they engage
in affinity marketing programs and referral services. CBI has license agreements
with Frederick Goldman Corp. for the limited use of its Keepsake and ArtCarved
tradenames and a distribution agreement with Wal-Mart for sale of Keepsake
branded products to be sold through Wal-Mart stores.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.2(h)
INDEBTEDNESS TO BE PAID
ITEM A. INDEBTEDNESS TO BE PAID ON THE CLOSING DATE
1. Indebtedness outstanding under the Existing Credit Agreement is
$138,734,743.22.
2. $28,382,918.10 of subordinated debt outstanding is owed to CHP II
under (A) two promissory notes issued by Taylor Holding Co. the aggregate
principal amount of approximately $18,500,000 and (B) a promissory note issued
by the Borrower in the principal amount of approximately $9,200,000.
3. Settlement amount in the aggregate amount of $1,463,000 will be
paid to The Bank of Nova Scotia on the Closing Date with respect to certain
interest rate swap agreements.
4. Settlement amount in the aggregate amount of $243,766 will be paid
to Key Bank on the Closing Date with respect to certain interest rate swap
agreements.
ITEM B. ONGOING INDEBTEDNESS
1. The outstanding aggregate amount of $1,247,714.53 as of
January 25, 2002 are owed with respect to certain interest rate swap agreements.
2. Taylor General Partner has leased from Point Financial certain
telecommunications equipment with lease payments in any one year not exceeding
$29,000. Renewed in February 1, 2002 for 1 year for $16,740.00.
3. Konica Business Machines has leased certain Konica Copier Systems
to Taylor General Partner and Taylor with lease payments in any one year not
exceeding $160,000.
4. Leasenet, Inc. has leased certain equipment, software, and other
personal property and modifications and additions thereto and replacements and
substitutions therefore to Taylor General Partner with lease payments in any one
year not exceeding $110,000.
5. Safeco Credit Co. Inc. DBA SAFELINE Leasing has leased four Yale
Forklifts to Taylor General Partner and Taylor with lease payments in any one
year not exceeding $24,000.
6. Neopost Leasing has leased certain mailing, shipping, computing
and other equipment to Taylor General Partner with lease payments in any one
year not exceeding $10,000.
<Page>
7. Lucent Technologies has leased certain telephone equipment to
Taylor General Partner and Taylor with lease payments in any one year not
exceeding $8,000.
8. Minolta Business Solutions has leased certain Minolta Copier
Systems to Taylor General Partner and Taylor with lease payments in any one year
not exceeding $7,000.
9. CBI has leased from AT&T Wireless Services equipment with monthly
service charges for 36 months beginning November 1, 1999 with monthly service
charges not exceeding $12,500.
10. CBI has leased from The CIT Group a Sunrise Thremography heat unit
for a monthly service charge not to exceed $580.75 for 36 months beginning
November 22, 1999.
11. CBI has leased from The CIT Group a used Caterpillar Autofeed
Feeder for a monthly service charge of $632.10 for 36 months beginning February
11, 2000.
12. CBI has leased from The CIT Group a Baum Folder and wet scores for
a monthly service charge not to exceed $775 for 59 months beginning February 11,
2000.
13. CBI has leased from IKON Office Solutions certain Xerox copiers
for a monthly charge of $7,125 for 48 months beginning October 8, 1999.
14. CBI has leased from The CIT Group a rebuilt Caterpillar Autofeed
feeder for a monthly service charge of $902.27 for 60 months beginning August
11, 2000.
15. CBI has leased from Pitney Bowes Credit Corporation certain
postage equipment for a monthly service charge of $325 for three months
beginning July 6, 2000 and $386 for 51 months thereafter.
16. CBI has leased from Pitney Bowes Credit Corporation certain
postage equipment for a monthly service charge of $150 for 72 months beginning
June 8, 2000.
17. CBI has contracted with J&J Mechanical for air conditioner
maintenance with a quarterly charge of $990 for 12 months beginning April 30,
2000. Expires April 30, 2001. New contract signed with a quarterly charge of
$1,029.60 for 12 months beginning April 27, 2001. Expires April 27, 2002.
18. CBI has leased from Fidelity Leasing a Xerox copier for a monthly
charge of $75.11 for 60 months beginning October 7, 1999.
19. CBI has leased from IKON Office Solutions an OCE 3165 printer for
a monthly charge of $3,752 for 48 months beginning August 26, 1999.
20. CBI has contracted with IKON Office Solutions for a maintenance
agreement on OCE 3165 for $0.09 per copy beginning August 26, 1999.
21. CBI has leased from NRD, Inc. a Nuclecel In Line Ionizer for an
annual charge of $177 as of December 16, 1999.
<Page>
22. CBI has contracted with IOS Capital for two pieces of equipment
(an Encad 700 and a Fiery Wide format controller) for 48 months beginning July
26, 2000 with monthly charges of $815.
23. CBI has leased from NTFC Capital Corporation telephone services
for 60 months beginning November, 24, 1999 with monthly charges of $4,469.63.
24. CBI has leased from CCA Financial a 9406-830 AS/400 computer. A
term of 36 months @ $30,846.73 per month commencing May, 2001.
25. CBI has leased from IKON Office Solutions two (2) OCE 8465
printers. A term of 36 months @ $9,542.22 per month commencing May 31, 2000.
26. CBI has contracted with IKON Office Solutions for a maintenance
agreement on various printers throughout the company at $0.25 per image. The
term of this agreement is 36 months, commencing on May 31, 2000. The cost for
the first 12 months was $33,600.00.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.3(j)
ONGOING LIENS
1. The software development agreement dated as of April 2, 1996
between Brian Stewart and Taylor General Partner provides: "If this agreement is
terminated by [Taylor General Partner] for any reason other than for cause,
ownership of the software shall be assigned by [Taylor General Partner] to the
Developer, eighteen (18) months after termination of this agreement." In Taylor
General Partner's opinion, Taylor General Partner terminated this agreement for
cause. Mr. Stewart did not complete the development of the Software in a form
and having capabilities acceptable to Taylor General Partner by April 30, 1996.
The Obligors currently have possession of the software developed by Mr. Stewart
but have no present plans to use it in their business, and in the Obligors'
opinion, it is not material to their business.
2. Taylor does not have valid legal title to consignment inventory
until it uses the same. Most of Taylor's consignment inventory is made up of
paper, cover paper, cover boards, cover materials and film. Taylor also keeps
plates, ink, foil, tape, various chemicals, art supplies, bindery materials and
other printing press materials as consignment inventory.
3. EI DuPont de Nemours & Co. has filed a financing statement which
covers, one WaterProof Proofing System and all present and future attachments,
accessories, replacements, substitutions, modifications, software, equipment and
additions. UCC-1 Financing Statement filed 11/20/95, Texas file number 222140.
4. ABV Graphics, Inc. has filed a financing statement covering all of
its inventory consigned to Taylor wherever located on Taylor's premises. UCC-1
Financing Statement filed 2/12/96, Texas file number 027983.
5. Point Financial has filed one financing statement giving public
notice of the lease of one DEC 2100 Alpha Configuration and one financing
statement giving public notice of the lease of certain specified items. UCC-1
Financing Statement filed 3/4/97, Texas file number 042555. UCC-1 Financing
Statement filed 1/20/99, Texas file number 99-013243. This lease expired and
Taylor purchased the equipment.
6. Konica Business Machines has filed three financing statements
giving public notice of the lease of certain specified Konica Copier Systems.
UCC-1 Financing Statement filed 4/3/97, Texas file number 066155. UCC-1
Financing Statement filed 1/13/98, Texas file number 008641. UCC-1 Financing
Statement filed 8/13/98, Texas file number 98-164723.
7. Fuji Photo Film U.S.A., Inc. has filed one financing statement
covering a Colorart CA600P S/N 541224 and a CA680T S/N 5482889 and a second
financing statement covering a Teaneck TFDS-6 S/N 970718. UCC-1 Financing
Statement filed 7/03/97, Texas file number 139669. UCC-1 Financing Statement
filed 8/21/97, Texas file number 175381.
<Page>
8. Norwest / Mark of Distinction, has filed a financing statement
covering one Four station folder / inserter sn 10503, one 6 bin collator sn
50100741 and 1072205-1 lls. UCC-1 Financing Statement filed 8/4/97, Texas file
number 162037.
9. Leasenet, Inc. has filed a financing statement giving public
notice of the lease of certain equipment, software, and other personal property
and modifications and additions thereto and replacements and substitutions
therefor. UCC-1 Financing Statement filed 10/27/98, Texas file number 98-214825.
This lease expired and the equipment was purchased in December, 2001.
10. Safeco Credit Co. Inc. DBA SAFELINE Leasing has filed four
financing statements one gives public notice of the lease of a 1998 Yale
Forklift, the other three each give public notice of the lease of a separate
1999 Yale Forklift. UCC-1 Financing Statements filed 3/10/99, Texas file numbers
99-048120, 99-048147 and 99-048210. UCC-1 Financing Statement filed 4/30/99,
Texas file number 99-087072.
11. Transilwrap Company, Inc. has filed a financing statement covering
rolls of plastic film products labeled "Transkote" 22 inch. UCC-1 Financing
Statement filed 4/26/99, Texas file number 99-084207.
12. NMHG Financial Services, Inc. has filed a financing statement
covering one new Yale Forklift GP040; and all accessions, additions,
replacements and substitutions thereto and therefor and all proceeds, including
insurance proceeds, thereof. UCC-1 Financing Statement filed 6/29/99, Texas file
number 99-132413.
13. Neopost Leasing has filed a financing statement against certain
mailing, shipping, computing and other equipment which they lease to Taylor
Publishing. UCC-1 Financing Statement filed 4/17/95, Texas file number 075515.
14. The title search for 1550 West Mockingbird Lane, Dallas, revealed
several easements over the property including an oil pipeline right-of-way
granted to Sinclair Refining Company in 1946 which was assigned to ARCO Pipe
Line Company in 1992. See attached Title Search.
15. Williams Communications Systems, Inc. has filed financing
statements against certain telephone equipment and systems which they lease to
CBI in Kentucky and Texas. UCC-1 Financing Statement filed 12/12/96, Kentucky
file number 97-10285; UCC-1 Financing Statement filed 10/31/97, Texas file
number 224860. We lease our telephone equipment from NTFC Capital Corporation
for the Kentucky facility. Maintenance with Williams Communications Systems is
included in the lease. We own the equipment at the Austin facility and the
maintenance is provided by Southwestern Bell.
16. Fidelity Leasing Inc. has filed financing statements against
certain specified office equipment which they lease to CBI, located in Kentucky
and Texas. UCC-1 Financing Statement filed 1/21/98, Kentucky file number
98-00550; UCC-1 Financing Statement filed 10/22/99, Texas file number 99-214342.
<Page>
17. Computer Sales International has filed a financing statement
against certain computer equipment which they lease to CBI. UCC-1 Financing
Statement filed 2/18/97, Massachusetts file number 449181.
18. IBM Credit Corporation has filed a financing statement against
certain computer equipment which they lease to CBI. UCC-1 Financing Statement
filed 10/22/97, Texas file number 218159. This lease has expired.
19. Copelco Capital has filed a financing statement against certain
computer equipment which they lease to CBI. UCC-1 Financing Statement filed
11/3/97, Texas file number 226840.
20. Pitney Bowes Credit Corporation has filed a financing statement
against certain postage equipment which they lease to CBI. UCC-1 Financing
Statement filed 9/28/98, Texas file number 98-194106.
21. IKON Office Solutions has filed financing statements against
certain office equipment which they lease to CBI. UCC-1 Financing Statements
filed:
<Table>
<Caption>
DATE OF FILING TEXAS FILE NUMBER
1/6/98 003834
5/20/98 98-103509
9/16/98 98-187263
2/22/99 99-035745
11/1/99 99-219754
</Table>
22. Sovereign Bank has been assigned rights under financing statements
filed in Connecticut and Massachusetts by Rhode Island Hospital Trust National
Bank ("Consignor") against CBI ("Consignee") with respect to all gold which is
at any time consigned by the Consignor to or for the account of Consignee, and
all proceeds and products thereof. These financing statements will be terminated
within 30 days of the Closing Date.
<Table>
<Caption>
STATE OF FILING ASSIGNMENT FILE DATE OF DATE OF ORIG ORIG UCC-1 FILE
NUMBER ASSIGNMENT UCC-1 FILING NUMBER
FILING
Connecticut 0002013693 8/3/00 12/20/96 0001739005
Massachusetts 735145 8/3/00 12/19/96 437108
</Table>
23. The Bank of Nova Scotia has filed financing statements against CBI
with respect to all gold and processed gold of any quality or fineness, whether
now existing or hereafter acquired, located from time to time at certain plants,
and all proceeds thereof (Letter Agreement dated 7.27.00). UCC-1 Financing
Statements filed:
<Table>
<Caption>
STATE OF FILING DATE OF FILING FILE NUMBER
Connecticut 8/8/00 0002014413
Delaware 8/30/00 20000057057
Florida 8/4/00 200000179657
</Table>
<Page>
<Table>
<Caption>
STATE OF FILING DATE OF FILING FILE NUMBER
Kentucky (SOS) 8/7/00 1604279
Kentucky (Jefferson Cty) 8/9/00 0006629
Massachusetts (SOS) 8/4/00 735634
Massachusetts (Attleboro Town) 8/4/00 347-M
New Jersey 8/4/00 1990478
New York (SOS) 8/4/00 152596
New York (Monroe Cty) 8/10/00 2000-005069
Oklahoma (Oklahoma Cty) 8/7/00 0042678
Rhode Island (SOS) 8/12/00 716248
</Table>
24. Wells Fargo Financial Leasing, Inc. has filed a financing
statement against certain copying equipment which they lease to Taylor General
Partner. UCC-1 Financing Statement filed 12/28/00, Texas file number 00650636.
25. MBO Binder and Co. of America, Inc. has filed a financing
statement against certain folding machines which they lease to Taylor General
Partner. UCC-1 Financing Statement filed 1/3/00, Texas file number 01-00001961.
26. Xerox Corporation has filed a financing statement against certain
copying equipment which they lease to Taylor General Partner. UCC-1 Financing
Statement filed 2/5/01, Texas file number 01-00023971.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.5(k)
ONGOING INVESTMENTS
CBI:
1. 27,000 shares of capital stock of Nakagawa - John Roberts,
Incorporated, incorporated in Japan. 288,000 shares of common stock, 500 yen per
share par value authorized, of which 108,000 are issued and outstanding
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.8(c)
EXISTING CONTINGENT LIABILITIES
1. Westvaco entered into a Consignment Agreement, at the request of
Taylor General Partner, with regard to Westvaco products that provides for
indemnification of Westvaco by Taylor General Partner and Taylor for liability
arising from death or injury to any person from the unloading, storing,
transferring or handling of any of Westvaco's inventory stored on Taylor's
facilities. This indemnification is limited by the amounts set forth in the
applicable workers' compensation statutes. Westvaco provides paper products and
the likelihood of liability under this agreement is negligible.
2. Taylor Holding Co. Guaranty dated March 19, 2001 in favor of the
holders defined therein, executed in connection with the Agreement dated March
19, 2001 between CBI and Angelo, Gordon and Co., L.P. and agreed to by Taylor
Holding Co.
3. Guaranty by TP Holding Corp. in favor of certain holders of notes
issued under the Indenture dated December 16, 1996 between Commemorative Brands,
Inc. and HSBC Bank USA as Trustee, as amended.
<Page>
DISCLOSURE SCHEDULE
ITEM 7.2.13
MANAGEMENT FEES
MANAGEMENT FEE. Pursuant to the Management Agreement dated as of March 30, 2001,
by and among CHI, CBI Holding Co., ECI, Taylor Holding Co. and Taylor General
Partner, and subject to the following sentence, the parties to such agreement
shall pay to CHI an annual management fee of $3,000,000 commencing fiscal year
2002 (the "Management Fee") and the Out-of-Pocket Expenses (as that term is
defined therein). The Management Fee will be paid on a quarterly basis in
arrears, payable on the last business day of each fiscal quarter commencing on
the last business day of the fiscal quarter following the Closing Date.
<Page>
SCHEDULE II
PERCENTAGES;
LIBOR OFFICE;
DOMESTIC OFFICE
NAME AND NOTICE ADDRESS
DOCUMENTATION AGENT
Bankers Trust Company
31 West 52nd, 7th Floor
Mail Stop NYC01-0705
New York, NY 10019
Attention: Mary Kay Coyle
Fax: (646) 324 7456
SYNDICATION AGENT
General Electric Capital Corporation
335 Madison Avenue, 12th Floor
New York, NY 10017
Attention: George Curteson
Fax: (212) 370 8066
ADMINISTRATIVE AGENT/ISSUER
The Bank of Nova Scotia
Suite 3000, 1100 Louisiana Street
Houston, TX 77002
Attention: Richard Bartolo
Fax: (713) 752 2425
<Page>
<Table>
<Caption>
PERCENTAGE
- ---------------------------------------------
Revolving Loan Commitment
The Bank of Nova Scotia $20,000,000
General Electric Capital $12,000,000
Corporation
Bankers Trust Company $ 8,000,000
-----------
total 100%
</Table>