EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
U.S. Bank National Association
Corporate Trust Services
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Re: Exchange Agency Agreement dated as of December 15, 2004.
Ladies and Gentlemen:
Nortek, Inc., a Delaware corporation, (the "Company") intends to make an
offer (the "Exchange Offer") to exchange up to $625,000,000 aggregate principal
amount of its 8 1/2% Senior Subordinated Notes due 2014 (the "New Notes") issued
by the Company and guaranteed by the guarantors (the "Guarantors"), which have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a Registration Statement of which the Prospectus (as defined
below) is a part, for a like principal amount of outstanding 8 1/2% Senior
Subordinated Notes due 2014 (the "Existing Notes") issued by the Company in
transactions exempt from or not subject to registration under the Securities
Act. The terms and conditions of the Exchange Offer as currently contemplated
are set forth in a prospectus, dated January 20, 2005 (the "Prospectus"),
proposed to be distributed to all holders of the Existing Notes. The Existing
Notes and the New Notes are collectively referred to herein as the "Notes."
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Indenture, dated as of August 27, 2004, between the Company
and U.S. Bank National Association, as Trustee ("USB").
The Company hereby appoints USB to act as exchange agent (the "Exchange
Agent") in connection with the Exchange Offer. References hereinafter to "you"
shall refer to USB.
The Exchange Offer is expected to be commenced by the Company on or about
the date of the Prospectus. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Existing Notes to accept the
Exchange Offer, and contains instructions with respect to the delivery of
certificates representing the Existing Notes tendered.
In the event any holder of the Existing Notes is tendering by book-entry
transfer to the Exchange Agent's account at The Depository Trust Company
("DTC"), such holders may tender through the DTC Automated Tender Offer Program
("ATOP"). DTC participants will transmit their acceptance of the Exchange Offer
to DTC, which will verify the acceptance and execute a book-entry delivery to
your account at DTC. DTC will then send an "Agent's Message" to you for its
acceptance.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
January 25, 2005 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"), written notice of such extension
shall be given to you by the Company. The Company shall give written notice to
you of the effective date of the Registration Statement promptly after the
Registration Statement becomes effective, and until your receipt of such written
notice you shall be entitled to assume in good faith that such effective date
has not occurred. 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
written notice to you of such on or before 9:00 a.m., New York City time, on
the next business day after the previously scheduled Expiration Date.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth herein (each of which is ministerial and shall not be construed as
fiduciary, and further no implied duties shall be construed or read into this
Agreement against you); provided, however, that your shall perform such duties
in good faith and in accordance with customary practice.
2. Subject to applicable ATOP procedures, you are to examine each Letter
of Transmittal that you receive and each original Existing Note that you receive
(and any other documents that you may receive from or on behalf of holders of
the Existing Notes) to ascertain whether: (i) such Letters of Transmittal (and
any such other documents) are duly executed and properly completed in accordance
with the instructions set forth in the Letter of Transmittal, and (ii) such
Existing Notes have otherwise been properly tendered. In each case where any
such Letter of Transmittal (or other such document) received by you has been
improperly completed or executed, or any such Existing Note received by you is
not in proper form for transfer, or some other irregularity in connection with
the acceptance of the Exchange Offer is apparent on the face of any such Letter
of Transmittal or Existing Note (or any such other document) received by you,
you will endeavor promptly to inform the presenters of the need for fulfillment
of all requirements and promptly to take any other action as may be necessary or
advisable to cause such irregularity to be corrected, and you will promptly
notify the Company thereof. With respect to any Letters of Transmittal and
Existing Notes tendered through the ATOP (or applicable guaranteed delivery
procedure) you shall be entitled to rely conclusively on information or
confirmations you receive from DTC (or other applicable institution, as the case
may be) with respect thereto.
3. With the approval of any of the Chairman, the Chief Executive Officer,
the President, any Vice President and the Secretary (each, a "Designated
Officer") of the Company, or of counsel to the Company (such approval, if given
orally, to be confirmed in writing) or any other party designated by such a
Designated Officer, you are authorized to waive any irregularities in connection
with any tender of Existing Notes pursuant to the Exchange Offer, without
incurring any liability (subject to the proviso in paragraph 1 hereof).
4. Tenders of Existing Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer -- Procedure for Tendering", and Existing 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 4, Existing Notes
that a Designated Officer, counsel to the Company, or any other party designated
by such Designated Officer shall approve as having been properly tendered shall
be considered by you, without incurring any liability (subject to the proviso in
paragraph 1 hereof), to be properly tendered.
5. You shall advise the Company with respect to any Existing Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Existing Notes.
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6. Subject to applicable ATOP procedures, you shall accept tenders:
(a) in cases where the Existing Notes received by you are
registered in two or more names, only if signed by all named holders;
(b) in cases where the signing person indicated on a Letter of
Transmittal received by you 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) in cases where tender of an Existing Note received by you is
made by a person other than the registered holder of such Existing Note,
if customary transfer requirements have been satisfied.
You shall accept partial tenders of Existing Notes where so
indicated and as permitted in the Letter of Transmittal and, in your
capacity as transfer agent, split-up and return any untendered principal
amount of the Existing Notes to the holder (or such other person as may be
designated in the Letter of Transmittal), as promptly as practicable after
the expiration or termination of the Exchange Offer.
7. The Company will exchange Existing Notes duly tendered for New Notes on
the terms and subject to the conditions set forth in the Prospectus and the
Letter of Transmittal. Delivery of Existing Notes will be made on behalf of the
Company at the rate of $1,000.00 of principal amount of New Notes for each
$1,000.00 of principal amount of Existing Notes tendered as soon as practicable
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said principal amount of Existing Notes by the Company; provided,
however, that in all cases, Existing Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely tender to you of the related Existing
Note representing such principal amount, and a properly completed and duly
executed Letter of Transmittal, in each case in accordance with and subject to
the Prospectus and the terms of the Letter of Transmittal.
8. Tenders of Existing Notes pursuant to the Exchange Offer may be
withdrawn prior to 5:00 p.m. New York City time on the Expiration Date, subject
to the terms and upon the conditions set forth in the Prospectus and the Letter
of Transmittal.
9. The Company shall not be required to exchange any Existing 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 Existing Notes
tendered shall be given (and confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Existing Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Procedure for Tendering" or otherwise, you
shall as soon as practicable after the Expiration Date (and receipt of
notification from the Company of such non-acceptance) return any certificates in
your possession representing (or, if applicable, effect appropriate book-entry
transfer) unaccepted Existing Notes, together with any accompanying Letters of
Transmittal (and related documents delivered to you pursuant to the Letter of
Transmittal) that are in your possession, to the persons who deposited them.
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11. All certificates in your possession representing returned Existing
Notes, unaccepted Existing Notes or New Notes shall be forwarded by first-class
certified mail, return receipt requested, if in the U.S., or by two day courier,
if outside the U.S.
12. If any holder shall report to you that his/her failure to surrender
Existing Notes registered in his/her name is due to the loss, misplacement or
destruction of a certificate or certificates, you shall request such holder (i)
to furnish to you an affidavit of loss and, if required by the Company or the
Guarantors, a corporate bond of indemnity in an amount and evidenced by such
certificate or certificates of a surety, as may be satisfactory to the Company
or the Guarantors, and (ii) to execute and deliver an agreement to indemnify the
Company, the Guarantors and you in such form as is acceptable to the Company,
the Guarantors and you. The obligees to be named in each such indemnity bond
shall include the Company, the Guarantors and you. You shall report in writing
to the Company the names of all holders who claim that their Existing Notes have
been lost, misplaced or destroyed and the principal amount of such Existing
Notes.
13. As Exchange Agent hereunder:
(a) you shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing by you and the Company (provided that the foregoing shall not be
construed to discharge your general duty to act in good faith);
(b) you will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the Existing Notes represented thereby deposited with you pursuant
to the Exchange Offer;
(c) you shall not be obligated to expend or risk your own funds, or
to take any legal or other action hereunder which might in your reasonable
judgment involve any expense or liability, unless you shall have been
furnished with indemnity satisfactory to you;
(d) you may rely on, and shall be protected in acting (or in
forbearing from action) in reliance upon any certificate, statement,
request, agreement, instrument, opinion, notice, letter, telegram or other
document, security or communication received by you and reasonably
believed by you to be genuine and (if applicable) to have been signed by
the proper party or parties;
(e) you may rely on and shall be protected in acting upon written or
oral instructions from any Designated Officer or counsel to the Company,
or any other party designated by a Designated Officer of the Company;
(f) you may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written opinion of
such independent 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 written opinion
of such counsel;
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(g) you shall not advise any person tendering Existing 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
Existing Notes;
(h) you shall not be deemed to have notice of any fact, claim or
demand with respect hereto unless actually known by an officer in your
Corporate Trust Office charged with responsibility for administering this
Agreement or unless in writing received by you and making specific
reference to this Agreement or the Exchange Offer;
(i) you shall not be under any responsibility for the validity,
genuineness or due authorization or execution of, or with respect to any
signatures appearing on, any Letter of Transmittal (or with respect to the
truth or accuracy of any information therein contained), any certificate
representing the Notes or any book-entry transfer of the Notes; and
(j) neither you nor any of your directors, officers or employees
shall be liable to anyone for any error of judgment, or for any act done
or step taken or omitted to be taken by you or any of your directors,
officers or employees, or for any mistake of fact or law, or for anything
which you or any of your directors, officers or employees, may do or
refrain from doing in connection with or in the administration of this
Agreement, unless and except to the extent the same constitutes gross
negligence, willful misconduct or bad faith on your part.
14. You shall take such action as may from time to time be requested by
the Company (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 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.
15. You shall advise by facsimile transmission, electronic mail or
telephone (and, in the case of advice by telephone, promptly thereafter confirm
in writing) to the following designated person (or such other person as such
person may subsequently designate by written notice to you) at the Company, upon
such person's written request from time to time made not more frequently than
once per business day (as defined below), as to the total principal amount of
Existing Notes that have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement as of the close of business or
the immediately preceding business day, separately reporting and giving
cumulative totals as to items properly received and items improperly received:
Nortek, Inc.
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇-▇▇▇.▇▇▇
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For purposes of this Agreement, the term "business day" shall mean
any day on which the Exchange Agent is open for business at its offices in St.
▇▇▇▇, Minnesota or its office in Boston, Massachusetts. In addition, you will
also inform, and cooperate in making available to, such person at the Company
(upon oral request reasonably made from time to time prior to the Expiration
Date) such other information in your possession regarding the items received by
you in connection with the Exchange Offer as he or she reasonably requests.
After the Expiration Date, you shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Existing Notes
tendered, the aggregate principal amount of Existing Notes accepted and deliver
said list to the Company.
16. Any Letters of Transmittal and Notices of Guaranteed Delivery actually
received by you shall be stamped by you as to the date and the time of your
receipt thereof and shall be preserved by you for a period of time at least
equal to (without any obligation on your part to preserve longer than) 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 in your possession by returning them to the Company.
17. 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 reason of amounts, if any, borrowed by the Company,
or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with your or for compensation owed to you hereunder.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation as set forth on Schedule I attached hereto, and shall
be entitled to reimbursement for out-of-pocket disbursements and expenses
(including the reasonable fees of your counsel) incurred in connection with the
preparation of this Agreement and your performance and observance of, or
pursuant to, the terms of this Agreement, each of which the Company agrees to
pay (as billed by you).
19. The Company hereby represents and warrants that it has provided to you
a complete, accurate and final copy of the Prospectus and the Letter of
Transmittal; and you hereby acknowledge receipt of the copies of the foregoing
that have been provided to you by the Company (or its counsel) 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 and provided to you), on the other hand,
with respect to the terms and conditions of the Exchange Offer shall be resolved
in favor of the latter two documents (except with respect to the duties,
immunities, liabilities, protections and indemnification of, or in favor of, you
as Exchange Agent, which shall be resolved and controlled by this Agreement).
20. The Company covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder (and your directors, officers and
employees) harmless against any loss, liability, cost and expense, including
(but not limited to) reasonable attorneys' fees and expenses that may be
suffered or incurred by you and arising out of or in connection with your
appointment as Exchange Agent hereunder, or your performance or observance of
this Agreement, or pursuant to the terms of this Agreement, including without
limitation any loss, liability cost or expense arising from any act, omission,
delay or refusal made by you in reasonable reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document reasonably believed by you to be valid,
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genuine and sufficient and in accepting any tender or effecting any transfer of
Existing 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 Existing 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 gross negligence, willful misconduct or bad faith.
The foregoing indemnity and agreement to hold harmless shall survive the
termination of this Agreement.
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 shall 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, 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
reasonably satisfactory to you to defend such suit, unless in your judgment,
which must be reasonable and made in good faith, it is advisable for you to be
represented or advised by separate counsel.
The Company hereby agrees to indemnify and hold you harmless from any
liability on account of taxes, assessments for late payment or other
governmental charges or any other such tax-related loss, costs or expenses
(including reasonable legal fees and expenses) that may be assessed against you
as a result of your duties hereunder, including without limitation any liability
for the withholding or deduction or the failure to withhold or deduct taxes, and
any liability for failure to obtain proper certifications or to properly report
to governmental authorities. The foregoing indemnity shall survive the
termination of this Agreement.
21. (a) You agree to comply with all applicable requirements under the tax
laws of the United States, including any back-up withholding and withholding
requirements, and shall file any appropriate reports with the Internal Revenue
Service in a timely manner. The provisions of this section shall survive the
termination of this Agreement until such time as the last applicable due date
for any required reports, withholdings or taxes.
(b) The Company hereby agrees to assume any and all obligations
imposed now or hereafter by any applicable tax law with respect to your duties
hereunder (other than income tax obligations in respect of income earned by
you). The Company understands that you are required to make a deduction (which
percentage deduction on the date hereof is 28%) on payments made to U.S. persons
on account of New Notes issued pursuant to the Exchange Offer who have not
supplied the correct taxpayer identification number or required certification,
and hereby undertakes to instruct you in writing with respect to any other
responsibility known by the Company that you may have for withholding and other
taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with your duties under this Agreement.
22. 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 Existing 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. The provisions of this section
shall survive the termination of this Agreement.
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23. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without regard to conflict of law principles thereof, 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.
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 provisions 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 telecopy 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:
Nortek, Inc.
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Exchange Agent:
U.S. Bank National Association
Corporate Trust Services
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
(Tel.: ▇▇▇-▇▇▇-▇▇▇▇)
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety (30) days following the Expiration Date. Notwithstanding the
foregoing, Sections 20, 21 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates, funds or property then held by you as Exchange
Agent under this Agreement.
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29. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the arrangement
herein provided by signing and returning the enclosed copy.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
and delivered on its behalf by a duly authorized officer, intending the same to
be effective as of the 15th day of December, 2004.
NORTEK, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
Accepted as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION, as Exchange Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
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