Exhibit 99.3
EXCHANGE AGENT AGREEMENT
February __, 2002
Xxxxx Fargo Bank Minnesota,
National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Ladies and Gentlemen:
Pathmark Inc., a Delaware corporation, proposes to make an
offer (the "EXCHANGE OFFER") to exchange all of its outstanding unregistered 8
3/4% Senior Subordinated Notes due 2012 (the "OLD NOTES"), of which $200,000,000
aggregate principal amount is outstanding, for an equal principal amount of its
8 3/4% Senior Subordinated Notes due 2012 (the "EXCHANGE NOTES"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated February __, 2002 (the "PROSPECTUS"), proposed to be
distributed to all record holders of the Old Notes. The Old Notes and the
Exchange Notes are collectively referred to herein as the "NOTES". The Notes are
and will be unconditionally guaranteed by Pathmark Stores Inc. (the "Company")
and Plainbridge LLC, a Delaware limited liability company, Adbrett Corp., a
Delaware corporation, AAL Realty Corp., a New York corporation, XXX Properties
Corp., a New Jersey corporation, Bridge Stuart Inc., a New York corporation and
PTMK Corp., a Delaware corporation (collectively, the "Subsidiary Guarantors").
The Company hereby appoints Xxxxx Fargo Bank Minnesota,
National Association to act as the Exchange Agent (the "EXCHANGE AGENT") in
connection with the Exchange Offer. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Prospectus.
The Exchange Offer is expected to be commenced by the Company
on or about February __, 2002. The Letter of Transmittal accompanying the
Prospectus (or in the case of book-entry securities, the Automated Tender Offer
Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to
be used by the holders of the Old Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old Notes
tendered in connection therewith.
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The Exchange Offer shall expire at 5:00 p.m., New York City
time, on _________, 2002 or on such subsequent 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 (promptly confirmed in writing) or written notice to you before
9:00 a.m., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Old 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--Expiration Date; Extensions; Amendment; Termination." The Company will
give oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
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 in the sections of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; PROVIDED, HOWEVER, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the
Old 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 Old
Notes by causing the Book-Entry Transfer Facility to transfer such Old 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
certificates for Old 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 Old notes, and any book-entry
confirmations 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; (ii) the Old Notes have otherwise been properly
tendered; and (iii) holders have provided their correct Tax Identification
Number or required certification. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old 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 reasonably necessary or
advisable to cause such irregularity to be corrected. You are not authorized to
waive any irregularity in connection with a surrender except as provided in
Section 4. If such irregularity is neither corrected nor waived, you will return
to the surrendering holder (at your option by either (a) first-class mail under
a blanket surety bond or insurance protecting you and the Company from losses or
liabilities arising out of the non-receipt or non-delivery of such certificates
or (b) registered mail insured separately for the value of such certificates),
to
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such holder's address set forth in the Letter of Transmittal, any certificates
for Old Notes surrendered in connection therewith, the related Letter of
Transmittal, and any other documents received with such certificates, and a
letter of notice explaining the reasons for the return of the certificates and
other documents.
4. With the approval of the President or any Vice President of
the Company (such approval, if given orally, to be promptly confirmed in
writing) or any other party designated in writing, by such an officer, you are
authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the
Letter of Transmittal and in the sections of the Prospectus captioned "The
Exchange Offer--Procedures for Tendering," and "The Exchange Offer--Guaranteed
Delivery Procedures," and Old Notes shall be considered properly tendered to you
only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Notes
that the President, Senior Vice President or any Vice President of the Company
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be promptly confirmed
in writing).
6. You shall advise the Company with respect to any Old Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old 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 Old
Notes, PROVIDED that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Notes to the registrar for split-up and return any untendered Old 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, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Old Notes properly tendered and you, on behalf of the Company, will
exchange such Old Notes for Exchange Notes and cause such Old
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Notes to be cancelled. 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 Old Notes tendered promptly after notice (such
notice, if given orally, to be promptly confirmed in writing) of acceptance of
said Old Notes by the Company; PROVIDED, HOWEVER, that in all cases Old Notes
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old 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 manually signed facsimile
thereof) with any required signature guarantees and any other required
documents. 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, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. All Old Notes accepted for exchange are to be retired from
the Company's books and will no longer be outstanding.
11. The Company shall not be required to exchange any Old
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 Old Notes
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer--Expiration Date; Extensions; Amendment;
Termination" or otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates for unaccepted
Old 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.
13. All certificates for reissued Old Notes, unaccepted Old
Notes or for Exchange Notes shall be forwarded by (a) first-class certified
mail, return receipt requested, under a blanket surety bond or insurance
protecting you and the Company from losses and liabilities arising out of the
non-receipt or non-delivery of such certificates or (b) registered mail insured
separately for the value of such securities.
14. 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 person to solicit tenders.
15. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act
unless the same constitutes your own gross negligence, willful misconduct or bad
faith, and in no event shall you
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be liable to a security holder, the Company or any third party for special,
indirect or consequential damages, or lost profits, arising in connection with
this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Old Notes represented thereby 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;
(d) 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 indemnity reasonably satisfactory to you;
(e) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request,
document, agreement, certificate 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 believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may reasonably rely on and shall be protected in acting
upon written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old 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 Old Notes.
16. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may deem
reasonably appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as such terms are used in the
Prospectus) or such other forms as may be approved from time to time by the
Company, 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 on your request. All other
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requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: General Counsel, Pathmark Stores Inc., 000 Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000-0000.
17. You shall advise by facsimile transmission the General
Counsel of the Company (at the facsimile number 732-499-3100), and such other
person or persons as the Company may request, daily (and more frequently
during the week immediately preceding the Expiration Date if requested) up to
and including the Expiration Date, as to the number of Old 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 upon oral request made from time to time prior
to the Expiration Date of such other information as they may reasonably
request. 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 Old
Notes tendered, the aggregate principal amount of Old Notes accepted and
deliver said list to the Company.
18. Letters of Transmittal, book-entry confirmations and
Notices of Guaranteed Delivery shall be stamped by you as to the date and, after
the expiration of the Exchange Offer, 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
preserve other records pertaining to the transfer of securities and shall
thereafter be delivered by you to the Company. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Company.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto. The provisions of this section shall survive the termination of this
Agreement.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent, which shall be controlled by this Exchange Agreement.
21. The Company covenants and agrees to fully indemnify and
hold you harmless in your capacity as Exchange Agent hereunder against any and
all loss, liability, cost or expense, including attorneys' fees and expenses,
incurred without gross negligence or willful misconduct on your part, arising
out of or in connection with any act, omission, delay or refusal made by you in
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 Old 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 Old Notes. In no case shall the Company be liable
under this
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indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or facsimile transmission, of the written assertion
of a claim against you or of any other action commenced against you, promptly
after you shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled to
participate at their own expense in the defense of any such claim or other
action and, if the Company so elects, the Company shall assume the defense of
any suit brought to enforce any such claim. It is understood that the Company
shall not be liable under this paragraph for the fees and disbursements of more
than one legal counsel to you. In the event that the Company may assume the
defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Company shall retain counsel satisfactory to you to defend such suit, and so
long as you have not determined, in your reasonable judgment, that a conflict of
interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
Without the prior written consent of the Company, you will not
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification could
be sought in accordance with the indemnification provisions of this Agreement
(whether or not you, the Company or any of its directors, officers and
controlling persons is an actual or potential party to such claim or
proceeding), unless such settlement or consent includes an unconditional release
of the Company and its directors, officers and controlling persons from all
liability arising out of such claim, action or proceeding.
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 file any appropriate reports with the Internal
Revenue Service.
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 Old Notes, the Company's check in the amount of all
transfer taxes so payable; 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
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.
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27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled 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 or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Pathmark Stores, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
Copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
If to the Exchange Agent:
Xxxxx Fargo Bank Minnesota,
National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Corporate Trust Services
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 18 and 20 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for securities, funds or property then held by you
as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
PATHMARK STORES, INC.
By:
-------------------------
Name:
Title:
Accepted as of the date first above written:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Exchange Agent
By:
-----------------------------------------
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT
Xxxxx Fargo Bank Minnesota, National Association: $2,500
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