April __, 1997
FORM OF EXCHANGE AGENT AGREEMENT
Marine Midland Bank
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Ladies and Gentlemen:
Commemorative Brands, Inc. (formerly known as Scholastic Brands, Inc.), a
Delaware corporation (the "Company"), proposes to make an offer (the "Exchange
Offer") to exchange its 11% Senior Subordinated Notes Due 2007 (the "Original
Notes") for its registered 11% Senior Subordinated Notes Due 2007 (the "Exchange
Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated April __, 1997 (the
"Prospectus"), proposed to be distributed to all record holders of the Original
Notes. The Original Notes and the Exchange Notes are collectively referred to
herein as the "Notes" or the "Securities."
The Company hereby appoints Marine Midland Bank to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Marine Midland Bank.
The Exchange Offer is expected to be commenced by the Company on or about
April 15, 1997. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Original Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of Original Notes tendered.
The Exchange Agent obligations with respect to receipt and inspection of the
Letter of Transmittal in connection with this Exchange Offer shall be satisfied
for all purposes hereof by inspection of the electronic message transmitted to
the Exchange Agent by Exchange Offer participants in accordance with the
Automated Tender Offer Program ("ATOP") of the Depository Trust Company ("DTC"),
and by otherwise observing and complying with all procedures established by DTC
in connection with ATOP.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on May
14, 1997 or on such later date or time to which the Company may extend the
Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set forth in the
Prospectus, the Company expressly reserves the right to extend the Exchange
offer from time to time and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you before 5:00 p.m., New York City
time, on the business day following the previously scheduled Expiration Date,
and in such case the term "Expiration Date" shall mean the time and date on
which such Exchange Offer as so extended shall expire.
The Company expressly reserves the right to delay, amend or terminate the
Exchange Offer, and not to accept for exchange any Original Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer." The Company will give to you as promptly as practicable oral
(confirmed in writing) or written notice of any delay, amendment, termination or
nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth herein or in the section of the Prospectus captioned "The Exchange
Offer" and such duties which are necessarily incidental thereto.
2. You will establish an account with respect to the Original Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Original Notes by causing
the Book-Entry Transfer Facility to transfer such Original Notes into your
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and Original Notes
(or confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility) and any other documents delivered or mailed to you by or for
holders of the Original Notes to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and in the
Prospectus and (ii) the Original Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the Original Notes are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, the President, or any
Vice President of the Company (such approval, if given orally, promptly to be
confirmed in writing) or any other party designated by such officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Original Notes pursuant to the Exchange Offer.
5. Tenders of Original Notes may be made only as bet forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer -
Tender Procedure" and Original Notes shall be considered properly tendered to
you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Original Notes which
the Chairman of the Board, the President or any Vice President of the Company or
any other party designated by any such officer in writing shall approve as
having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, promptly shall be confirmed in writing).
6. You shall advise the Company with respect to any Original Notes
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Original Notes.
7. You shall accept tenders:
(a) in cases where the Original Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted, and
(c) from persons other than the registered holder of Original Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so indicated and
as permitted in the Letter of Transmittal and deliver the Original Notes to the
transfer agent for split-up and return any untendered Original Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, promptly to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all original Notes properly tendered and you, on behalf of the Company, will
exchange such Original Notes for Exchange Notes and cause such Original Notes to
be canceled. Delivery of Exchange Notes will be made on behalf of the Company by
you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of the Original Notes tendered promptly after notice (such
notice if given orally, promptly to be confirmed in writing) of acceptance of
said Original Notes by the Company provided, however, that in all cases,
Original Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Original Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof, or an Agent's Message (as defined in the Prospectus) in lieu
thereof) with any required signature guarantees
and any other required document. You shall issue Exchange Notes only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Original Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Original Notes
tendered shall be given (such notices if given orally, promptly shall be
confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Original Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer" or otherwise, you shall as soon as practicable
after the expiration or termination of the Exchange Offer return those
certificates for unaccepted Original Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
12. All reissued Original Notes, unaccepted Original Notes or Exchange
Notes shall be forwarded by (a) first-class mail, postage pre-paid under a
blanket surety bond protecting you and the Company from loss or liability
arising out of the non-receipt or non-delivery of such certificates or (b) by
registered mail insured separately for the replacement value of each of such
certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the Original Notes deposited with you pursuant to the Exchange Offer, and will
not be required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(b) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or omitted
by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result of
the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance
with the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may rely on and shall be protected in acting upon written notice
or oral instructions (confirmed in writing) from any officer of the Company with
respect to the Exchange Offer;
(f) shall not advise any person tendering Original Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Original Notes;
(g) may consult with counsel and the written advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
reliance thereon.
15. You shall send to all holders of Original Notes a copy of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
used in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company to commence the Exchange
Offer and take such other action as may from time to time he requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of
Original Notes and to all persons requesting such documents and to accept and
comply with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for accepting
(or withdrawing from) the Exchange Offer. The Company will furnish you with
copies of such documents at your request. All other request for information
relating to the Exchange Offer shall be directed to the Company, Attention:
_____________________, at the Company's offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇,
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16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to _______________ of the Company, and such other
person or persons as the Company may request in writing, not later than 7:00
p.m., New York City time, each business day, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the number of Original
Notes which have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, you will also inform, and cooperate in making available to, the
Company or any such other person or persons
as the Company requests in writing from time to time prior to the Expiration
Date of such other information as it reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Company and such person
as the Company may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You shall
prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of Original Notes tendered and the aggregate principal amount
of Original Notes accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
customarily preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus materials in
accordance with your customary procedures.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you shall be entitled
to such compensation and reimbursement of out-of-pocket expenses as set forth on
Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except (i) with respect to the duties, liabilities and
indemnification of you as Exchange Agent which shall be controlled by this
Agreement, and (ii) that the last sentence of the third introductory paragraph
shall control.
21. The Company agrees to indemnify and hold you harmless in your capacity
as Exchange Agent hereunder against any liability, cost or expense, including
reasonable attorneys' fees and expenses, arising out of or in connection with
your appointment as Exchange Agent and the performance of your duties hereunder,
including, without limitation, any act, omission, delay or refusal made by you
in reasonable reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Original Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Original Notes; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
misconduct or
bad faith. The Company's and the Exchange Agent's obligations under this
paragraph 21 shall survive the termination of this Agreement and the discharge
of your obligation hereunder and any other termination of this Agreement under
any federal or state bankruptcy law.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall prepare and file such tax information forms as are
appropriate or required to be prepared by you with respect to any payments made
by you to any Note holder with the Internal Revenue Service. The Company
understands that you are required to deduct 31% on payments to holders who have
not supplied their correct Taxpayer Identification Number or required
certification. Such funds will he turned over to the Internal Revenue Service in
accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely manner, to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Original Notes your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Original Notes; provided,
however, that you shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time as such refund
is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, as its address or telecopy
number set forth below:
If to the Company:
Commemorative Brands, Inc.
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Facsimile: ( )
Attention: ____________________
If to the Exchange Agent:
Marine Midland Bank
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration Department
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18, 19, 21 and 23 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Original Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
COMMEMORATIVE BRANDS, INC.
By: ___________________________
Name:
Title:
Accepted as the date first above written:
MARINE MIDLAND BANK
By: _______________________
Name:
Title:
