SEVENTH AMENDMENT TO REVOLVING CREDIT,
TERM LOAN AND GOLD CONSIGNMENT AGREEMENT
Seventh Amendment dated as of June 28, 1999 (the "Amendment") amending that
certain Revolving Credit, Term Loan and Gold Consignment Agreement dated as of
December 16, 1996 (as amended and in effect from time to time, the "Credit
Agreement"), by and among COMMEMORATIVE BRANDS, INC. (f/k/a Scholastic Brands,
Inc.), a Delaware corporation (the "Borrower"), BANKBOSTON, N.A. (f/k/a The
First National Bank of Boston and successor by merger to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇), ▇▇▇▇▇ ▇▇▇▇▇▇ HOSPITAL TRUST NATIONAL BANK, a national
banking association, and the other financial institutions listed on SCHEDULE 1
to the Credit Agreement (collectively, the "Banks"); and BANKBOSTON, N.A. as
agent for itself and the Banks. Capitalized terms used herein and which are not
otherwise defined shall have the respective meanings ascribed thereto in the
Credit Agreement.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms and
conditions of the Credit Agreement as specifically set forth in this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. SECTION 1.1
of the Credit Agreement is hereby amended as follows:
(a) The definition of "Borrowing Base" is hereby amended in
its entirety to read as follows:
"BORROWING BASE. At the relevant
time of reference thereto, an amount determined by the
Dollar Agent by reference to the most recent Borrowing Base
Report delivered to the Banks and the Agents pursuant to
Section 11.4(f), which is equal to the sum of, without
duplication:
(a) 90% of the Fair Market Value of the Precious Metal
content of Eligible Inventory held by the Borrower at
Borrower Permitted Inventory Locations, PLUS
(b) 70% of the Fair Market Value of the Precious Metal
content of Eligible Inventory held by, or in transit to or
from, Specified Refiners (net of any amounts advanced by
such Specified Refiners to the Borrower and included in
Eligible Inventory held by the Borrower at Borrower
Permitted Inventory Locations), PLUS
(c) 80% of the Fair Market Value of Silver and Platinum
contained in Eligible Inventory and held by the Borrower at
Borrower Permitted Inventory Locations, PLUS
(d) 50% of the net book value (determined on a first-in
first-out basis at lower of cost or market) of non-precious
metals contained in Eligible Inventory and held by the
Borrower at Borrower Permitted Inventory Locations, PLUS
(e) 30% of the net book value (determined on a first-in
first-out basis at lower of cost or market) of the value of
precious and semi-precious stones contained in Eligible
Inventory and held by the Borrower at Borrower Permitted
Inventory Locations, PLUS
(f) 30% of the net book value (determined on a first-in
first-out basis at lower of cost or market) of Eligible
Inventory consisting of raw material paper products or
graphics inventory (excluding work-in-process and finished
goods inventory) and held by the Borrower at Borrower
Permitted Inventory Locations, PLUS
(g) the lesser of (i) 40% of the Fair Market Value of the
Precious Metal content of Eligible Inventory constituting
samples held in the ordinary course of business by sales
representatives or at retail locations and (ii) $1,000,000,
PLUS
(h) 80% of Eligible Accounts Receivable for which
invoices have been issued and are payable, PLUS
(i) the Overadvance Amount, MINUS
(j) $500,000, MINUS
(k) Reserves."
(b) The definition of "Consolidated Net Worth" is hereby
deleted in its entirety.
(c) The definition of "Consolidated Total Assets" is hereby
deleted in its entirety.
(d) The definition of "Consolidated Total Liabilities" is
hereby deleted in its entirety.
(e) SECTION 1.1 of the Credit Agreement is hereby further
amended by inserting the following definitions in the appropriate
alphabetical order:
"OVERADVANCE AMOUNT. $4,000,000 until the Overadvance
Termination Date and at all times thereafter $0."
"OVERADVANCE DATE. The date on which the Overadvance Amount
is first utilized by the Borrower."
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"OVERADVANCE TERMINATION DATE. The earlier to occur
of (i) one hundred twenty (120) days after the Overadvance Date and
(ii) December 30, 1999."
"RESERVES. As determined by the Agent, such amounts as the
Agent may from time to time establish and revise (a) to reflect events,
conditions, contingencies or risks which do or may (i) adversely affect
either (A) any Collateral, the rights of the Agent or any of the Banks
in any Collateral or its value or (B) the security interest and other
rights of the Agent or any of the Banks in the Collateral (including
the enforceability, perfection and priority thereof) or (ii) adversely
affect in any material respect the assets (other than any Collateral)
or business or financial condition of any of the Borrower or any of its
Subsidiaries or (b) to reflect the belief of the Agent that any
Borrowing Base Report or other collateral report or financial
information furnished by or on behalf of the Borrower to the Agent or
any of the Banks is or may have been incomplete, inaccurate or
misleading in any material respect."
Section 2. AMENDMENT TO SECTION 8.1 OF THE CREDIT AGREEMENT.
SECTION 8.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"8.1 INTEREST ON LOANS. Except as otherwise provided in Section 8.20,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at a rate per annum equal to
the sum of (i) the Base Rate PLUS (ii) the Base Rate Applicable Margin.
(b) Each Eurodollar Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at a rate per annum
equal to the sum of (i) the Eurodollar Rate PLUS (ii) the Eurodollar
Applicable Margin.
(c) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
Notwithstanding the foregoing, to the extent that the Outstanding Facility
Amounts exceed the Borrowing Base MINUS the Overadvance Amount, Revolving Credit
Loans equal to the amount of such excess shall bear interest at a rate per annum
equal to the sum of (i) the Base Rate PLUS (ii) three percent (3%)."
Section 3. ADDITION TO SECTION 10 OF THE CREDIT AGREEMENT. The
following new SECTION 10.22 is hereby added to the Credit Agreement:
"10.22. YEAR 2000 PROBLEM. The Borrower and its
Subsidiaries have reviewed the areas within their businesses and
operations which could be adversely affected by, and have developed a
program which shall be in effect on or before September 30, 1999 to
address the "Year 2000 Problem" (i.e. the risk that computer
applications used by the
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Borrower or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior
to and any date after December 31, 1999). Based upon such review, the
Borrower reasonably believes that the "Year 2000 Problem" will not have
any materially adverse effect on the business or financial condition of
the Borrower or any of its Subsidiaries. In addition, the Borrower
shall, within 30 days after written request by the Agent, provide to
the Banks a written report summarizing in reasonable detail the
Borrower's actions to comply with this covenant and the results of such
actions."
Section 4. AMENDMENT TO SECTION 11.4 OF THE CREDIT AGREEMENT. SECTION
11.4(b) of the Credit Agreement is hereby amended in its entirety to read as
follows:
"(b) as soon as practicable, but in any event not later
than (i) with respect to the fiscal quarters of the Borrower ending in
May and ending in November, forty (40) days after the end of each such
fiscal quarters of the Borrower and (ii) with respect to any other
fiscal quarters of the Borrower, forty-five (45) days after the end of
each such fiscal quarters of the Borrower, copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such quarter, and the related consolidated statement of
income and consolidated statement of cash flow for the portion of the
Borrower's fiscal year then elapsed, all in reasonable detail and
prepared in accordance with generally accepted accounting principles,
together with a certification by the principal financial or accounting
officer or treasurer of the Borrower that the information contained in
such financial statements fairly presents the financial position of the
Borrower and its Subsidiaries on the date thereof (subject to year-end
adjustments);
Section 5. AMENDMENT TO SECTION 12.12 OF THE CREDIT AGREEMENT. Section
12.12 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"12.12 TRANSACTIONS WITH AFFILIATES. The Borrower will
not, nor will the Borrower permit or suffer any of its Subsidiaries to,
conduct any transactions among themselves or with any Affiliates of the
Borrower, other than (a) payment of the CH Management Fee in an
aggregate amount not to exceed $1,500,000 during any fiscal year of the
Borrower so long as the Agent has received certificates from the
Borrower, in form and substance satisfactory to the Agent, evidencing
that (i) no Event of Default shall have occurred and be continuing and
none would result from the making thereof and (ii) the Short Term
Revolving Credit Note has been paid in full and (iii) the Modified
Funded Debt Ratio is greater than 1.10:1.00, PROVIDED, HOWEVER, subject
to (i), (ii) and (iii) above, any portion of such amount not paid
during any fiscal year may be paid in any subsequent fiscal year, (b)
transactions with Oakley Insurance Group regarding the Borrower's
insurance policies and coverage upon terms not materially less
favorable to the Borrower or such Subsidiary than it could obtain in a
comparable arm's-length transaction with a party other than Oakley
Insurance Group, (c) a Permitted Preferred Stock Replacement, (d)
transactions among the Borrower and
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its Subsidiaries, (e) any Permitted Employee Stock Repurchases, (f) any
Permitted Capital Stock Repurchase, (g) transactions constituting
Investments permitted by Sections 12.3(h) or (o) hereof, (h)
transactions in the ordinary course of the Borrower's or such
Subsidiary's business, consistent with past practices, and upon terms
not materially less favorable to the Borrower or such Subsidiary than
it could obtain in a comparable arm's-length transaction with a party
other than the Borrower, such Subsidiary or such Affiliate and (i)
entering into an Indemnification Agreement."
Section 6. AMENDMENT TO SECTION 13.1 OF THE CREDIT AGREEMENT. SECTION
13.1 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY REPLACING THE TABLE
APPEARING THEREIN WITH THE FOLLOWING TABLE:
PERIOD RATIO
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8/31/99 3.30:1.00
11/30/99 3.50:1.00
2/28/00 - 8/31/00 3.30:1.00
11/30/00 and thereafter 2.30:1.00
Section 7. AMENDMENT TO SECTION 13.2 OF THE CREDIT AGREEMENT. SECTION
13.2 of the Credit Agreement is hereby amended by replacing the table
appearing therein with the following table:
PERIOD AMOUNT
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8/31/99 $17,000,000
11/30/99 $15,091,000
2/28/00 $17,064,000
5/31/00 $20,206,000
8/31/00 $21,877,000
11/30/00 - 8/31/01 $23,500,000
11/30/01 - 8/31/02 $24,000,000
11/30/02 - 8/31/03 $24,500,000
11/30/03 and thereafter $25,000,000
Section 8. AMENDMENT TO SECTION 13.3 OF THE CREDIT AGREEMENT. SECTION
13.3 of the Credit Agreement is hereby amended by replacing the table
appearing therein with the following table: July 12, 1999
Fiscal Year Amount
1999 $5,750,000
2000 $5,100,000
2001 and thereafter $3,500,000
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Section 9. AMENDMENT TO SECTION 13.4 OF THE CREDIT AGREEMENT. SECTION
13.4 of the Credit Agreement is hereby amended by replacing the table
appearing therein with the following table:
PERIOD RATIO
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8/31/99 1.00:1.00
11/30/99 - 2/28/00 1.00:1.00
5/31/00 1.10:1.00
8/31/00 1.25:1.00
11/30/00 - 8/31/01 1.60:1.00
11/30/01 and thereafter 1.75:1.00
Section 10. AMENDMENT TO SECTION 13.5 OF THE CREDIT AGREEMENT. SECTION
13.5 of the Credit Agreement is hereby amended in its entirety to read as
follows:
[Intentionally omitted].
Section 11. CONDITIONS TO EFFECTIVENESS. This Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this Amendment, executed by the each
of the Borrower, the Agent and the Majority Banks;
(b) an amendment fee of $143,000 paid by the Borrower for
the PRO RATA account of each Bank based on such Bank's percentage of the
Total Commitment; and
(c) evidence that the Borrower has received not less than
$8,500,000 of additional equity on terms and conditions satisfactory to the
Agent.
Section 12. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Borrower contained in the Credit Agreement were true and
correct when made and continue to be true and correct on and as of the date
hereof as if made on the date hereof except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and to the extent that such representations and warranties relate expressly
to an earlier date. No Default or Event of Default has occurred and is
continuing.
Section 13. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related
thereto, including, but not limited to the Security Documents, are hereby
ratified and confirmed in all respects and shall continue in full force and
effect. The Credit Agreement and this Amendment shall be read and construed
as a single agreement. All references in the Credit Agreement or any related
agreement or instrument to the Credit Agreement shall hereafter refer to the
Credit Agreement as amended hereby.
Section 14. RELEASE. The Borrower, on its own behalf and on behalf of
its successors and assigns, hereby waives, releases and discharges the Agent
and each Bank and all of the affiliates of the Agent and each Bank, and all
of the directors, officers, employees, attorneys and agents of
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the Agent, each Bank and such affiliates, from any and all claims, demands,
actions or causes of action (known and unknown) arising out of or in any way
relating to the Loan Documents and any documents, agreements, dealings or
other matters connected with the Credit Agreement, in each case to the extent
arising (x) on or prior to the date hereof or (y) out of, or relating to,
actions, dealings or matters occurring on or prior to the date hereof. The
waivers, releases, and discharges in this SECTION 13 shall be effective
regardless of whether the conditions to this Amendment are satisfied and
regardless of any other event that may occur or not occur after the date
hereof.
Section 15. NO WAIVER. Nothing contained herein shall constitute a
waiver of, impair or otherwise affect any Obligations, any other obligation
of the Borrower or any rights of the Agent or the Banks consequent thereon.
Section 16. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
Section 17. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a
document under seal as of the date first above written.
COMMEMORATIVE BRANDS, INC. (f/k/a Scholastic
Brands, Inc.)
BY: /s/ ▇. ▇. ▇▇▇▇▇
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NAME: ▇. ▇. ▇▇▇▇▇
TITLE: TREASURER
BANKBOSTON, N.A. (f/k/a The First National Bank
of Boston and successor by merger to Rhode
Island Hospital Trust National Bank), individually
and as Agent
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: MANAGING DIRECTOR
LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: VICE PRESIDENT
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
(f/k/a CREDITANSTALT-BANKVEREIN)
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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NAME: ▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: SENIOR ASSOCIATE
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: EXECUTIVE VICE PRESIDENT
FLEET PRECIOUS METALS INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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NAME: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
TITLE: BANKING OFFICER
▇▇▇▇▇▇ FINANCIAL, INC.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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NAME: ▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: SENIOR VICE PRESIDENT
FLEET BUSINESS CREDIT CORPORATION
(f/k/a SANWA BUSINESS CREDIT CORPORATION)
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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NAME: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
TITLE: VICE PRESIDENT
UNION BANK OF CALIFORNIA, N.A.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NAME: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: VICE PRESIDENT