EXHIBIT 99.3
o, 2002
EXCHANGE AGENT AGREEMENT
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Exchanges
Ladies and Gentlemen:
X. X. Xxxxx Finance Company, a Delaware corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $o,000,000
principal amount of its o% guaranteed notes due 20__, (the "New Notes") for a
like principal amount of its outstanding o% guaranteed notes due 20__ (the "Old
Notes"). The terms and conditions of the Exchange Offer are set forth in a
prospectus (the "Prospectus") included in the Company's registration statement
on Form S-4 (File No. 333- ), as it may be amended from time to time (the
"Registration Statement"), filed with the Securities and Exchange Commission,
and proposed to be distributed to all record holders of the Old Notes. The Old
Notes and the New Notes are collectively referred to herein as the "Notes."
Capitalized terms used herein and not defined shall have the respective
meanings ascribed to them in the Prospectus or accompanying Letter of
Transmittal.
The Company hereby appoints Bank One Trust Company, N.A. to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Bank One Trust Company, N.A..
The Exchange Offer is expected to be commenced by the Company on or about
o, 2002. The Letter of Transmittal accompanying the Prospectus (or in the case
of book entry securities, either the Letter of Transmittal or the Automated
Tender Offer Program ("ATOP") system) 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.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on o,
2002, 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 at or before 5:00 P.M.,
New York City time, on the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Old Notes
not theretofore accepted for exchange. The Company will give oral (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 to be performed by the Exchange Agent in the section of the
Prospectus captioned "The Exchange Offer," in the Letter of Transmittal
accompanying the Prospectus or as specifically set forth herein; provided,
however, that in no way will your general
duty to act in good faith and without gross negligence or willful misconduct be
limited by the foregoing. As soon as practicable after commencement of the
Exchange Offer, the Exchange Agent will mail to each Holder (as defined in the
Indenture), and to each DTC participant identified by DTC as a holder of any
Old Notes (i) a Letter of Transmittal with instructions (including instructions
for completing a substitute Form W-9, (ii) a Prospectus and (iii) a Notice of
Guaranteed Delivery all in accordance with the procedures described in the
Prospectus. The Company shall supply the Exchange Agent with sufficient copies
of the Prospectus, the Letter of Transmittal and the Notice of Guaranteed
Delivery to enable Exchange Agent to perform its duties hereunder. Company
shall also furnish or cause to be furnished to the Exchange Agent a list of
holders of the Old Notes (including a beneficial holder list from DTC,
certified Old Notes numbers and amounts, mailing addresses, and social security
numbers), unless waived by the Exchange Agent.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company ("DTC") 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 DTC's systems may, until the Expiration Date, make
book-entry delivery of the Old Notes by causing DTC to transfer such Old Notes
into your account in accordance with DTC's procedures for such transfer. In
every case, however, a Letter of Transmittal (or a manually executed facsimile
thereof) or an agent's message, properly completed and duly executed or
authenticated, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Letter of
Transmittal must be complied with.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (and confirmation of book-entry transfers of Old Notes into your
account at DTC) and any other documents delivered or mailed to you by or for
holders of the Old Notes, to ascertain whether: (i) the Letters of Transmittal,
certificates and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and that such
Book-Entry Confirmations are in due and proper form and contain the information
required to be set forth therein, (ii) the Old Notes have otherwise been
properly tendered, (iii) the Old Notes tendered in part are tendered in
denominations of $1,000 and integral multiples thereof, and (iv) holders have
provided their taxpayer identification number ("TIN") or required
certification. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed, or where Book-Entry
Confirmations are not in due and proper form or omit certain information, or
where 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
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, any Vice President or the Secretary
of the Company (such approval, if given orally, to be confirmed in writing) or
any other person designated by such an officer in writing, you are authorized
to waive any irregularities in connection with any tender of Old Notes pursuant
to the Exchange Offer. You are authorized to process withdrawals to the extent
permitted by the Exchange Offer.
5. At the written request of the Company or its counsel, you shall notify
tendering holders of Old Notes in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such termination, you will
return all tendered Old Notes to the persons entitled thereto, at the request
and expense of the Company.
6. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange
Offer," 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 paragraph 6, Old Notes which the President, any Vice
President or the Secretary of the Company or any other person designated by any
such person shall approve as having been properly tendered shall be considered
to be properly tendered (such approval, if given orally, shall be confirmed in
writing). New Notes are to be issued in exchange for Old Notes pursuant to the
Exchange Offer only (i) against deposit with you prior to the Expiration Date
or, in the case of a tender in accordance with the guaranteed delivery
procedures outlined in Instruction 1 of the Letter of Transmittal, within three
New York Stock Exchange trading days after the Expiration Date of the Exchange
Offer, together with
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executed Letters of Transmittal and any other documents required by the
Exchange Offer or (ii) in the event that the holder is a participant in DTC's
system, by the utilization of DTC's ATOP and receipt of any evidence required
by the Exchange Offer.
7. 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.
8. 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 those
regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the registrar for the Old Notes (the "Security 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.
9. 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
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 New Notes and cause such Old Notes to be canceled.
Delivery of New Notes will be made on behalf of the Company by you at the rate
of $1,000 principal amount of New Notes for each $1,000 principal amount of the
Old Notes tendered promptly after notice (such notice, if given orally, to be
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 DTC), a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees (except as described in the
section of the Prospectus captioned "The Exchange Offer--Procedures for
Tendering") and any other required documents. Unless otherwise instructed by
the Company, you shall issue New Notes only in denominations of $1,000 or any
integral multiple thereof.
10. 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 on or prior to the Expiration Date in accordance
with the terms of the Exchange Offer.
11. The Company shall not be required to accept for 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 accept for exchange any Old Notes
tendered shall be given (and 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 or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return the certificates for those 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 (or effected such book-entry
transfer).
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13. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes (other than those effected by book-entry transfer) shall be forwarded
by (a) first-class certified mail, return receipt requested, under a blanket
surety bond obtained by you protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificates or
(b) by registered mail insured by you separately for the replacement value of
each of such certificates.
14. As soon as practicable after the Expiration Date, you shall arrange
for cancellation of the Old Notes submitted to you or returned by DTC in
connection with the ATOP. Such Old Notes shall be cancelled and retired by you
pursuant to your standard procedures unless otherwise instructed by the Company
(or a representative designated by the Company) in writing.
15. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
16. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those specifically
set forth or incorporated specifically by reference in this Agreement
or as may be subsequently agreed to in writing by you and the
Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates for the Old 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 or the New Notes;
(c) 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;
(d) may reasonably rely upon and shall be protected in acting in
reliance upon any written or electronic certificate, instrument,
opinion, notice, letter or other document or security delivered to
you and reasonably believed by you to be genuine and to have been
signed or authenticated by the proper party or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and the 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 represented by a proper person or persons;
(f) may rely upon and shall be protected in acting upon written or
oral instructions from any officer of the Company as set forth
herein;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the written advice
of such counsel, or the written opinion of counsel to the Company,
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 written advice or opinion of
such counsel; and
(h) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all
or any portion of Old Notes or as to the market value of, or the
decline or appreciation in market value of, any Old Notes that may or
may not occur as a result of the Exchange Offer or as to the market
value of the New Notes;
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provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
17. 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 reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as described 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 at
your request.
18. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxxxx X. Xxxxx, Xx., President of the
Company (telephone number 000-000-0000, facsimile number 412-456-6015) and such
other person or persons as the Company may request, daily (and more frequently
during the week immediately preceding the Expiration Date and if otherwise
requested), up to and including the Expiration Date, as to the number and
aggregate principal amount of Old Notes which have been duly tendered pursuant
to the Exchange Offer and the items received by you pursuant to the Exchange
Offer and this Agreement, separately reporting and giving cumulative totals as
to items properly received and items improperly received. Such reporting shall
be substantially in the form of Exhibit A hereto. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons designated by the Company upon oral request made from time to
time prior to the Expiration Date of such other information as it or he or she
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, including the identity of the
holders of Old Notes who have not tendered such Old Notes as of the date such
request was made. You shall prepare a final list of all persons whose tenders
were accepted, the number and aggregate principal amount of Old Notes tendered,
the number and aggregate principal amount of Old Notes accepted and the
identity of any Participating Broker-Dealers and the number and aggregate
principal amount of New Notes delivered to each, and deliver said list to the
Company. Within five Business Days after the Expiration Date.
19. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery received by you 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, or one year, whichever is longer, and thereafter
shall be disposed by you in accordance with your standard procedures unless
required to be delivered by you to the Company. You shall dispose of unused
Letters of Transmittal and other surplus materials, upon consultation with the
Company, in accordance with your customary procedures.
20. 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, credit
or other agreement with you or for compensation owed to you hereunder or under
any other agreement.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation, and reimbursement of your expenses, including
counsel fees and disbursements, as separately agreed in writing with the
Company as set forth on the Schedule attached hereto.
22. 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 the duties, liabilities and indemnification of you as Exchange
Agent, which shall be controlled by this Agreement.
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23. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including reasonable attorneys' fees and expenses arising out of or in
connection with your appointment as Exchange Agent hereunder, including but not
limited to 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; provided, however, that anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or by
facsimile which is confirmed by letter, 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 notice of commencement of
action. The Company shall be entitled to participate, at its own expense, in
the defense of any such claim or other action, and, if the Company so elects,
the Company may assume the defense of any pending or threatened action against
you in respect of which indemnification may be sought hereunder, in which case
the Company shall not thereafter be responsible for the subsequently incurred
fees and disbursements of legal counsel for you under this paragraph so long as
the Company shall retain counsel reasonably satisfactory to you to defend such
suit; provided, however, that the Company shall not be entitled to assume the
defense of any such action if the named parties to such action include both you
and the Company and representation of both parties by the same legal counsel
would, in the written opinion of your counsel, be inappropriate due to actual
or potential conflicting interests between you and the Company. You understand
and agree that the Company shall not be liable under this paragraph for the
fees and expenses of more than one legal counsel for you.
24. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing TINs, and shall file
any appropriate reports with the Internal Revenue Service. The Company
understands that you are required, in certain instances, to make deductions of
thirty-one percent (31%) with respect to interest paid on the New Notes and
proceeds from the sale, exchange, redemption or retirement of the New Notes at
the rates specified in the Internal Revenue Code of 1986, as amended, from
holders who have not supplied their correct TINs or required certification.
Such funds will be turned over to the Internal Revenue Service in accordance
with applicable regulations.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of a written
approval from the Company, 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, 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 Old 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.
26. 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.
27. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and its successor and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
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28. 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.
29. 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.
30. 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.
31. 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, to:
X.X. Xxxxx Finance Company
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx, 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Lobes
with a copy to:
Xxxxx Xxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy (000) 000-0000
If to the Exchange Agent, to:
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Exchanges
32. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraphs 19, 21, 23 and 25 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for New Notes, funds or property then held by you as
Exchange Agent under this Agreement.
33. 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.
X.X. XXXXX FINANCE COMPANY
By:
-------------------------------
Name:
Title:
Accepted as of the date first above written:
BANK ONE TRUST COMPANY, N.A.,
AS EXCHANGE AGENT
By:
------------------------------------------
Name:
Title:
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Exhibit A
Date:____________________
X. X. Xxxxx Finance Company
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
BY FAX: (412) 456-[ ]
Re: Notice of Tenders - ___% Guaranteed Notes due 20__ (the "Old Notes")
With respect to Section 18 of the Exchange Agent Agreement, dated as of
_________ __, 200_, we confirm the following information as of the date hereof:
1. Principal amount of Old Notes tendered during Principal amount of Old
Notes tendered during the past week: $____________________
2. Principal amount of Old Notes referred to in paragraph 1. above
regarding which Exchange Agent questions validity of the tender:
$____________________
3. Aggregate principal amount of Old Notes tendered since the Effective
Date as to which Exchange Agent questions the validity of the tender:
$___________________.
4. Principal amount of Old Notes remaining unpresented (based on
$___,000,000 total Old Notes): $__________________
5. Total aggregate principal amount of Old Notes validly tendered since
the Effective Date: $_____________________
Bank One Trust Company, National Association,
as Exchange Agent
By: _________________________________________
Name:
Title:
