Exhibit 99.3
Exchange Agent Agreement
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Pediatric Services of America, Inc., a Delaware corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange up to
$75,000,000 aggregate principal amount of its 10% Senior Subordinated Notes due
2008, Series A (the "New Notes") for up to $75,000,000 of its outstanding 10%
Senior Subordinated Notes due 2008 (the "Old Notes"). The terms and conditions
of the Exchange Offer as currently contemplated are set forth in a prospectus,
dated on or about May ___, 1998 (the "Prospectus"), 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."
The Company hereby appoints SunTrust Bank, Atlanta to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to SunTrust Bank, Atlanta.
The Exchange Offer is expected to be commenced by the Company on or about
May ___, 1998. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Old Notes to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Old Notes
tendered in connection therewith and (ii) the book-entry transfer of the
tendered Old Notes to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
__________ ___, 1998 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
in its sole and absolute discretion to extend the Exchange Offer from time to
time by giving oral (to be 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 in its sole and absolute
discretion, subject to applicable law, at any time and from time to time, (i) to
delay the acceptance of the Old Notes for exchange, (ii) to terminate the
Exchange Offer (whether or not any Old Notes have theretofore been accepted for
exchange) if the Company determines, in its sole and absolute discretion, that
any of the events or conditions referred to under the caption "The Exchange
Offer--Certain Conditions to the Exchange Offer" in the Prospectus have occurred
or exist or have not been satisfied, and (iii) to waive any condition or
otherwise amend the terms of the Exchange Offer in any respect. The Company
will give oral (confirmed in writing) or written notice of any amendment,
termination, or waiver under the Exchange Offer and of nonacceptance of Old
Notes to you promptly after any amendment, termination, waiver 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 in the section 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 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 system may make book-entry delivery of the Old
Notes by causing DTC to transfer such Old Notes into your account in accordance
with DTC'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 DTC),
any Notice of Guaranteed Delivery 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 and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the Old
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 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 any President, Senior Vice President, Chief
Financial Officer or General Counsel of the Company or any person designated in
writing by the Company (a "Designated Officer") (such approval, if given orally,
to be confirmed in writing) or any other party designated by any such Designated
Officer in writing, you are authorized to waive any irregularities in connection
with any tender of Old Notes pursuant to the Exchange Offer.
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5. 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 5, Old Notes which any
Designated Officer shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
confirmed in writing).
6. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept their 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 such person's authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including 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 transfer agent 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
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
in principal amount of New Notes for each $1,000 in Old Notes the corresponding
series of 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, unless waived in writing by the Company, 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 and any other required documents. You shall
issue New Notes only in a principal amount of $1,000 or any integral multiple of
$1,000 in excess thereof. New notes may be tendered in whole or in part in a
principal amount of $1,000,
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provided that if any holder tenders Old Notes for exchange in part, the
principal amount of the untendered Old Notes must not be less than $__________.
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 on or prior to the Expiration Date.
10. 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 orally (and confirmed in writing) or 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 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--Certain Conditions to the Exchange Offer" or otherwise, you
shall promptly 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 or
entities who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes shall be forwarded by (a) first-class certified mail, return receipt
requested, 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, (b) by registered mail insured separately for the replacement
value of each of such certificates, or (c) by appropriate book-entry transfer.
13. You are not authorized, and shall have no obligation, 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.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," the
Letter of Transmittal or herein 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 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;
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(c) shall not be obligated to take, suffer or omit any 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 on and shall be protected in taking, suffering
or omitting any action 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 by the proper
party or parties;
(e) may reasonably act upon any tender, statement, request, 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 believe to be
genuine or to have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any Designated Officer of the Company;
(g) may consult with your counsel 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
(h) shall not be called upon at any time to 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;
(i) shall not be liable or responsible for any recital or statement
contained in the Prospectus, the Letter of Transmittal or the Notice of
Guaranteed Delivery (as defined in the Prospectus) or any of the documents
relating thereto, or for any failure of the Company to comply with any of its
obligations relating to the Exchange Offer, including without limitation,
obligations under any applicable securities laws; and
(j) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from any holder of New
Notes or Old Notes or any depository or for the actions of any other parties in
connection therewith.
15. 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 defined 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
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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 requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: Xxxxx X. Xxxxxx.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxx X. Xxxxxx, General Counsel of the
Company, 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
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 designated by the Company
upon oral request made from time to time on or prior to the Expiration Date of
such other information as it or such person 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 Old Notes tendered and the
aggregate principal amount of Old Notes accepted and deliver said list to the
Trust promptly after the Expiration Date.
17. Any Letters of Transmittal and Notices of Guaranteed Delivery which
are received by the Exchange Agent 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 preserve other records pertaining to
the transfer of securities. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company at the address set
forth below for notices.
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 as set forth on Schedule I attached hereto and for
the reimbursement of reasonable counsel fees (not to exceed $1,500), customary
disbursements and reasonable out-of-pocket expenses actually incurred in the
performance of your duties under 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
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amended from time to time with your approval), 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.
21. (a) The Company covenants and agrees to indemnify and hold you and
your officers, directors, employees and agents (herein collectively, the
"Indemnified Parties" or individually, an "Indemnified Party") harmless in your
capacity as Exchange Agent hereunder against any loss, damage, liability, cost
or expense, including without limitation reasonable attorneys' fees and
expenses, 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; 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 or
willful misconduct. In no case shall the Company be liable under this indemnity
with respect to any claim unless the Company shall be notified by an Indemnified
Party, by letter or cable or by facsimile confirmed by letter, of the written
assertion of a claim or of any other action which may be covered by this
indemnification, promptly after receipt by such Indemnified Party of 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 suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit or threatened action in respect of
which indemnification may be sought hereunder, the Company shall not be liable
for the fees and expenses of any additional counsel thereafter retained by an
Indemnified Party so long as you consent to the Company's retention of counsel,
which consent may not be unreasonably withheld; provided that the Company shall
not be entitled to assume or continue the defense of any such action if the
named parties to such action include both the Company and you and representation
of both parties by the same legal counsel would, in the written opinion of
counsel to such Indemnified Party, be inappropriate due to actual or potential
conflicting interests between such Indemnified Party and the Company (a
"Conflicting Interest"). It is understood that the Company shall not be liable
under this paragraph for the fees and expenses of more than one legal counsel
for the Indemnified Parties. Except as set forth in this subparagraph (a), in
the event that the Company shall assume the defense of any such suit, the
Company shall not thereafter be liable for the fees and expenses of any counsel
retained by you or any other Indemnified Party unless a Conflicting Interest
arises.
(b) Without the prior written consent of the Company (which consent
shall not be unreasonably withheld), no Indemnified Party will settle,
compromise or consent to the entry of 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 or the
Company or any of its officers, directors, employees, or controlling persons is
an actual or potential party to such claim, action or proceeding). Without
limiting the generality of the foregoing, it is understood and agreed that the
Company may withhold such consent if such settlement,
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compromise or consent does not include an unconditional release of the Company
and its officers, directors, employees and controlling persons from all
liability arising out of such claim, action or proceeding.
22. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of Georgia
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.
23. On or before January 31, 1999, you will prepare and mail to each
holder of the Notes, other than those who demonstrate their status as
nonresident aliens in accordance with United States Treasury Regulations
("Foreign Holders"), a Form 1099-B reporting the distributions paid on the Notes
as of the year in which such monies become available for payment, in accordance
with Treasury Regulations. You will also prepare and file copies of such Forms
1099-B by magnetic tape with the Internal Revenue Service on or before February
28, 1999, in accordance with Treasury Regulations. If you have not received
notice from a holder of the Notes that the holder's Taxpayer Identification
Number ("TIN"), or if such TIN has not been certified as correct and relates to
a post-1983 account, or if you have been notified by the Internal Revenue
Service that the taxpayer identification number provided by the holder is
incorrect, you shall deduct and withhold 31% backup withholding tax from any
payment made to such holder (other than a Foreign Shareholder) pursuant to
Internal Revenue Code Section 3406.
24. This Agreement may be executed in one 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.
25. 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.
26. 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.
27. 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:
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If to the Company:
Pediatric Services of America, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
If to the Exchange Agent:
SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 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 Notes, 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.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
PEDIATRIC SERVICES OF AMERICA, INC.
By: _________________________
Name:
Title:
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Accepted as the date
first above written:
SUNTRUST BANK, ATLANTA as Exchange Agent
By:__________________________
Name:
Title:
10
SCHEDULE I
FEES
For Services Rendered as Exchange Agent $_________
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