EXHIBIT 4.3
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE dated as of March 15, 2004 among
American Achievement Corporation, a Delaware corporation (the "Company"), the
Guarantors (as defined in the Indenture referred to herein), and The Bank of New
York, as trustee under the Indenture referred to below (the "Trustee").
WHEREAS, the Company and certain of the Guarantors have heretofore
executed and delivered to the Trustee an indenture dated as of February 20, 2002
(as such indenture has been supplemented and amended to date, the "Existing
Indenture", and the Existing Indenture, as it may from time to time be
supplemented or amended by one or more additional indentures supplemental
thereto entered into pursuant to the applicable provisions thereof, being
hereinafter called the "Indenture"), providing for the issuance of an aggregate
principal amount of up to $177.0 million of 11 5/8% Senior Notes due 2007 (the
"Notes");
WHEREAS, the Company and certain of the Guarantors have heretofore
executed and delivered to the Trustee supplemental indentures dated as of July
17, 2002 and December 24, 2002 providing for the unconditional guarantee all of
the Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth therein;
WHEREAS, the Company and the Guarantors propose to amend the Existing
Indenture and the Notes (the "Proposed Amendments"), as contemplated hereby;
WHEREAS, the Company has obtained the consent of the Holders of the
Notes pursuant to the Offer to Purchase and Consent Solicitation Statement dated
February 24, 2004, as amended, supplemented or modified (the "Consent
Solicitation Statement"), to the Proposed Amendments upon the terms and subject
to the conditions set forth therein;
WHEREAS, pursuant to Section 9.2 of the Indenture, the Company and the
Guarantors may amend or supplement the Indenture and the Notes as contemplated
hereby provided that the Holders of at least 66 2/3% in aggregate principal
amount of Notes then outstanding have consented;
WHEREAS, the Company has received and delivered to the Trustee the
consent of the Holders of at least 66 2/3% in aggregate principal amount of the
Notes to the Proposed Amendments;
WHEREAS, each of the Company and each Guarantor has been authorized by
a resolution of its respective board of directors to enter into this Third
Supplemental Indenture;
WHEREAS, all other acts and proceedings required by law, by the
Existing Indenture and by the certificate of incorporation and by-laws of the
Company and the Guarantors to make this Third Supplemental Indenture a valid and
binding agreement for the purposes expressed herein, in accordance with its
terms, have been duly done and performed;
WHEREAS, pursuant to Section 9.6, the Trustee is authorized to execute
and deliver this Third Supplemental Indenture;
WHEREAS, following the execution of this Third Supplemental Indenture,
the terms hereof will become operative (the "Operative Date") upon the
acceptance for purchase by the Company of Notes validly tendered in the tender
offer contemplated by the Consent Solicitation Statement (the "Tender Offer
Condition"); and
WHEREAS, the terms of this Third Supplemental Indenture shall be null
and void if the Tender Offer Condition does not occur.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That, for and in consideration of the premises herein contained and in
order to effect the proposed amendments contained in the Consent Solicitation
Statement, pursuant to Sections 9.2 and 9.6 of the Existing Indenture, the
Company and the Guarantors agree with the Trustee as follows:
ARTICLE 1
Amendment of Existing Indenture and Notes
1.1. Amendment of Existing Indenture. Effective as of the Operative Date, this
Third Supplemental Indenture amends the Existing Indenture as provided for
herein. If the Operative Date does not occur on or prior to the date that is 90
days following the date of this Third Supplemental Indenture, then the terms of
this Third Supplemental Indenture shall be null and void and the Existing
Indenture shall continue in full force and effect without any modification
hereby.
1.2. Amendment of Section 1.1. Pursuant to Section 9.2 of the Existing
Indenture, Section 1.1 of the Existing Indenture is hereby amended by deleting
in their entirety the definitions of "Acquired Indebtedness," "Asset
Acquisition," "Borrowing Base," "Consolidated EBITDA," "Consolidated Fixed
Charge Coverage Ratio," "Consolidated Fixed Charges," "Consolidated Interest
Expense," "Consolidated Net Income," "Consolidated Net Worth," "Consolidated
Non-cash Charges," "Credit Agreement," "Foreign Restricted Subsidiary,"
"Independent Financial Advisor," "Interest Swap Obligation," "Management
Agreement," "Material Domestic Restricted Subsidiary," "Pari Passu
Indebtedness," "Permitted Business," "Permitted Indebtedness," "Permitted
Investments," "Permitted Liens," "Purchase Money Indebtedness," "Refinancing
Indebtedness," "Subordinated Indebtedness," and "Weighted Average Life to
Maturity" contained in the Existing Indenture.
1.3. Amendment of Section 1.2. Pursuant to Section 9.2 of the Existing
Indenture, Section 1.2 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 1.2 Other Definitions.
DEFINED IN
TERM SECTION
---- ----------
"Agent Members"................................................................................. 2.6
"Certificated Notes"............................................................................ 2.1
"Covenant Defeasance"........................................................................... 8.3
"Event of Default".............................................................................. 6.1
"Foreign Person"................................................................................ 2.6
"Global Notes".................................................................................. 2.1
"Institutional Accredited Investors"............................................................ 2.1
"Legal Defeasance".............................................................................. 8.2
"Offshore Certificated Notes"................................................................... 2.1
"Paying Agent".................................................................................. 2.3
"Permanent Regulation S Global Note"............................................................ 2.1
"Private Placement Legend"...................................................................... 2.6
"Registrar"..................................................................................... 2.3
"Regulation S Global Note"...................................................................... 2.1
"Rule 144A Global Note"......................................................................... 2.1
"Temporary Regulation S Global Note"............................................................ 2.1
"U.S. Certificated Notes"....................................................................... 2.1
1.4. Amendment of Section 3.8. Pursuant to Section 9.2 of the Existing
Indenture, Section 3.8 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 3.8. [INTENTIONALLY OMITTED].
1.5. Amendment of Section 3.9. Pursuant to Section 9.2 of the Existing
Indenture, Section 3.9 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 3.9. [INTENTIONALLY OMITTED].
1.6. Amendment of Section 3.10. Pursuant to Section 9.2 of the Existing
Indenture, Section 3.10 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 3.10. [INTENTIONALLY OMITTED].
1.7. Amendment of Section 4.2. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.2 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.2. [INTENTIONALLY OMITTED].
1.8. Amendment of Section 4.3. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.3 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.3. [INTENTIONALLY OMITTED].
1.9. Amendment of Section 4.4. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.4 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.4. [INTENTIONALLY OMITTED].
1.10. Amendment of Section 4.5. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.5 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.5. [INTENTIONALLY OMITTED].
1.11. Amendment of Section 4.7. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.7 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.7. [INTENTIONALLY OMITTED].
1.12. Amendment of Section 4.8. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.8 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.8. [INTENTIONALLY OMITTED].
1.13. Amendment of Section 4.9. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.9 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.9. [INTENTIONALLY OMITTED].
1.14. Amendment of Section 4.10. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.10 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.10. [INTENTIONALLY OMITTED].
1.15. Amendment of Section 4.11. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.11 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.11. [INTENTIONALLY OMITTED].
1.16. Amendment of Section 4.12. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.12 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.12. [INTENTIONALLY OMITTED].
1.17. Amendment of Section 4.13. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.13 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.13. [INTENTIONALLY OMITTED].
1.18. Amendment of Section 4.14. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.14 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.14. [INTENTIONALLY OMITTED].
1.19. Amendment of Section 4.15. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.15 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.15. [INTENTIONALLY OMITTED].
1.20. Amendment of Section 4.16. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.16 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.16. [INTENTIONALLY OMITTED].
1.21. Amendment of Section 4.17. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.17 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.17. [INTENTIONALLY OMITTED].
1.22. Amendment of Section 4.19. Pursuant to Section 9.2 of the Existing
Indenture, Section 4.19 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 4.19. [INTENTIONALLY OMITTED].
1.23. Amendment of Section 5.1. Pursuant to Section 9.2 of the Existing
Indenture, Section 5.1 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 5.1. [INTENTIONALLY OMITTED].
1.24. Amendment of Section 5.2. Pursuant to Section 9.2 of the Existing
Indenture, Section 5.2 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company, the
surviving entity shall succeed to and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such surviving entity had been named as the Company herein.
1.25. Amendment of Section 6.1. Pursuant to Section 9.2 of the Existing
Indenture, Section 6.1 of the Existing Indenture is
hereby amended and restated in its entirety to read as follows:
Section 6.1. Events of Default
Each of the following constitutes an "Event of Default":
(a) the failure to pay interest on any Note when the
same becomes due and payable and the default continues for a
period of 30 days;
(b) the failure to pay the principal of any Note,
when such principal becomes due and payable, at maturity, upon
redemption or otherwise;
(c) [INTENTIONALLY OMITTED];
(d) [INTENTIONALLY OMITTED];
(e) [INTENTIONALLY OMITTED];
(f) the Company or any Significant Subsidiary of the
Company:
(i) commences a voluntary case under any Bankruptcy
Law,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian or
receiver of it or for all or substantially, all of its
property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they become
due; or
(g) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief in an involuntary case against the
Company or any Significant Subsidiary of the Company;
(ii) appoints a custodian or receiver of the Company
or any Significant Subsidiary or for all or substantially all
of the property of any of the foregoing;
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(h) [INTENTIONALLY OMITTED].
1.26. Amendment of Section 8.4. Pursuant to Section 9.2 of the Existing
Indenture, Section 8.4 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following are the conditions precedent to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders cash in U.S.
dollars, U.S. Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants
selected by the Company, to pay the principal of, premium, if
any, and interest on the Notes on the stated date for payment
thereof or on the applicable redemption date, as the case may
be;
(2) [INTENTIONALLY OMITTED];
(3) [INTENTIONALLY OMITTED];
(4) [INTENTIONALLY OMITTED];
(5) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a
default under this Indenture or any other material agreement
or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries
is bound;
(6) [INTENTIONALLY OMITTED];
(7) the Company shall have delivered to the Trustee
an officers' certificate and an opinion of counsel, each
stating that all conditions precedent provided for or relating
to the Legal Defeasance or the Covenant Defeasance have been
complied with; and
(8) [INTENTIONALLY OMITTED].
1.27. Amendments to the Notes. Pursuant to Section 9.2 of the Existing
Indenture, Sections 6 and 9 of the Notes are hereby deleted in their entirety
and clauses (iii), (iv) and (v) of Section 13 of the Notes are hereby amended
and restated in their entirety to read as follows:
"(iii) [INTENTIONALLY OMITTED]; (iv) INTENTIONALLY OMITTED]; (v)
INTENTIONALLY OMITTED];".
ARTICLE 2
The Trustee
2.1. Privileges and Immunities of Trustee. The Trustee accepts the amendment of
the Indenture and the Notes effected by this Third Supplemental Indenture but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture as hereby amended. The Trustee shall not be responsible for the
adequacy or sufficiency of the Third Supplemental Indenture, for the due
execution thereof by the Company and the Guarantors or for the recitals
contained herein, which are the Company's and the Guarantors' responsibilities.
ARTICLE 3
Miscellaneous Provisions
3.1. Instruments to be Read Together. This Third Supplemental Indenture is an
indenture supplemental to and in implementation of the Existing Indenture, and
said Existing Indenture and this Third Supplemental Indenture shall henceforth
be read together.
3.2. Confirmation. The Existing Indenture as amended and supplemented by this
Third Supplemental Indenture is in all respects confirmed and preserved.
3.3. Terms Defined. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Existing Indenture.
3.4. Counterparts. This Third Supplemental Indenture may be signed in any number
of counterparts each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
3.5. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
3.6. Effectiveness. The provisions of this Third Supplemental Indenture will
become operative on the Operative Date.
3.7. Governing Law. The internal law of the State of
New York shall govern and
be used to construe this Third Supplemental Indenture without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby. This Third
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of the Indenture and shall, to the extent
applicable, be governed by such provisions.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first above written.
AMERICAN ACHIEVEMENT CORPORATION
By:
---------------------------------------
Name
Title:
COMMEMORATIVE BRANDS, INC.
By:
---------------------------------------
Name
Title:
CBI NORTH AMERICA, INC.
By:
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Name
Title:
▇▇▇▇▇▇ SENIOR HOLDINGS CORP.
By:
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Name
Title:
▇▇▇▇▇▇ PUBLISHING COMPANY
By:
---------------------------------------
Name
Title:
TP HOLDING CORP.
By:
---------------------------------------
Name
Title:
EDUCATIONAL COMMUNICATIONS, INC.
By:
---------------------------------------
Name
Title:
▇▇▇▇▇▇ PUBLISHING MANUFACTURING, L.P.
By:
---------------------------------------
Name
Title:
▇▇▇▇▇▇ MANUFACTURING HOLDINGS, LLC
By:
---------------------------------------
Name
Title:
THE BANK OF
NEW YORK,
AS TRUSTEE
By:
---------------------------------------
Name
Title:
