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EXHIBIT 99.3
XXXXXXX INDUSTRIES INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
EXCHANGE AGENT AGREEMENT
_________, 0000
Xxxxx Xxxxxx Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Xxxxxxx Industries Inc., a Delaware corporation (the "Company") proposes to make
an offer (the "Exchange Offer") to exchange up to $100,000,000 aggregate
principal amount of its 10 1/4% Senior Subordinated Notes due July 1, 2008 (the
"Exchange Notes"), which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), for a like principal amount of its
outstanding 10 1/4% Senior Subordinated Notes due July 1, 2008 which have not
been so registered (the "Original Notes"), of which $100,000,000 aggregate
principal amount is outstanding. The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, expected to be dated
September __, 1998 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all record holders of
the Original Notes. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Prospectus.
The Company hereby appoints State Street Bank and Trust Company to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to State Street Bank and Trust
Company.
The Exchange Offer is expected to be commenced by the Company on or about
________, 1998. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Original Notes to accept the Exchange Offer, and
contains instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on ________,
1998 unless extended (as so extended 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 no later than 9:00 a.m., New York City time, on the next business day
after 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 Original 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-Conditions of the Exchange Offer." 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:
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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," as
specifically set forth herein and such duties which are necessarily incidental
thereto; 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 Original 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 or,
if you already have established an account with the Book-Entry Transfer Facility
suitable for the Exchange Offer, you will identify such pre-existing account to
be used in the Exchange Offer, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Original Notes by causing the Book-Entry Transfer Facility to
transfer such Original 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, certificates for the
Original Notes and confirmations of book-entry transfers into your account at
the Book-Entry Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Original 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 Original 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 Original 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 Chief Executive Officer or the Chief Financial
Officer of the Company (such approval, if given orally, to be confirmed in
writing), you are authorized to waive any irregularities in connection with any
tender of Original Notes pursuant to the Exchange Offer.
5. Tenders of Original Notes may be made only as set forth in the section of the
Prospectus captioned "The Exchange Offer--Procedures for Tendering" or in the
Letter of Transmittal, and Original 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, Original Notes which the
Company or any other party designated by the Company in writing 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 Original Notes delivered
subsequent to the Expiration Date and accept its written instructions with
respect to the disposition of such Original Notes.
7. You shall accept tenders:
(a) in cases where the Original 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 to so act is submitted; and
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(c) from persons other than the registered holder of Original Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Original
Notes to the transfer agent for split-up and return any untendered Original
Notes to the holder (or to 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 the Company's acceptance, promptly after the Expiration
Date, of all Original Notes properly tendered and you, on behalf of the Company,
will exchange such Original Notes for Exchange Notes and cause such Original
Notes to be canceled. 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 Original Notes tendered promptly after notice (such
notice if given orally, to be promptly confirmed in writing) of acceptance of
said Original Notes by the Company; provided, however, that in all cases,
Original Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Original Notes (or
confirmation of book- entry transfer into you account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees (or Agent's Message in
lieu thereof) and any other required document. 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, Original 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 Original 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 Original Notes tendered shall be
given (such notice, if given orally, shall be promptly confirmed 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 Original Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer--Conditions of the Exchange Offer" or otherwise, you shall
as soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Original Notes (or effect the
appropriate book-entry transfer of the unaccepted Original Notes), and return
any related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.
12. All certificates for reissued Original Notes or for unaccepted Original
Notes shall be forwarded by (a) first-class 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 or
(b) by registered mail insured separately for the replacement value of such
certificates.
13. 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.
14. As Exchange Agent hereunder you:
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(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
Original Notes, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer; provided,
however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) 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 satisfactory to you;
(c) shall not be liable to the Company for any action taken or omitted by
you, or any action suffered by you to be taken or omitted, without gross
negligence, willful misconduct or bad faith on your part, by reason of or
as a result of the administration of your duties hereunder in accordance
with the terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any written or
oral instructions delivered to you pursuant hereto, and may conclusively
rely on and shall be fully protected in acting or refraining from acting in
good faith in reliance upon any certificate, instrument, opinion, notice,
letter, facsimile 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;
(d) 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 (without any
investigation thereto), which you shall in good faith reasonably believe to
be genuine or to have been signed or represented by a proper person or
persons;
(e) may conclusively rely on and shall be fully protected in acting upon
written or oral instructions from any officer of the Company with respect
to the Exchange Offer and shall not be liable for acting or refraining from
acting in accordance with any oral instructions which are inconsistent with
the written confirmation provided in connection therewith;
(f) shall not advise any person tendering Original 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 Original Notes; and
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities and the written opinion of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice or written opinion of such counsel.
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, at the Company's expense, 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. All
other requests for information relating to the Exchange Offer shall be directed
to the Secretary of the Company at: 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000.
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16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Company and Xxxxxxx & Xxxxxx, LLP, counsel
for the Company, and such other person or persons as they may request, weekly,
and more frequently, if reasonably requested, up to and including the Expiration
Date, as to the principal amount of the Original 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 of the items
properly received, items improperly received and items covered by Notices of
Guaranteed delivery. You shall also provide the Company or any such other person
or persons as the Company may request from time to time prior to the Expiration
Date with such other information as the Company or such other person may
reasonably request. In addition, you shall grant to the Company and such persons
as the Company may request, 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 them to decide whether to extend the Exchange Offer. You shall
prepare a list of holders who failed to tender or whose tenders were not
accepted and the aggregate principal amount of Original Notes not tendered or
not accepted and deliver said list to the Company at least seven days prior to
the Expiration Date. You shall also prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Original Notes tendered
and the aggregate principal amount of Original Notes accepted and deliver said
list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery 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.
18. For services rendered as Exchange Agent hereunder you shall be entitled to a
fee from the Company of $5,000 and you shall be entitled to reimbursement of
your expenses (including fees and expenses of your counsel, which fees are
expected under normal circumstances to be not in excess of $5,000) incurred in
connection with the Exchange Offer. The provisions of this section 18 shall
survive the termination of this Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your obligations hereunder. 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.
20. The Company agrees to indemnify and hold you (and your officers, directors,
employees and agents) harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorney's fees,
arising out of or in connection with the acceptance or administration of your
duties hereunder, including, without limitation, in connection with any act,
omission, delay or refusal made by you in reasonable reliance upon any
signature, enforcement, 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 Original 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 Original 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. You shall notify the Company by letter or cable or by facsimile
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 commencement of action; however, failure to provide
such notification shall not constitute a waiver of any rights afforded the
Exchange Agent under this section. The Company shall be entitled to participate
at its own
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expense in the defense of any such claim or other action. You shall not
compromise or settle any such action or claim without the consent of the
Company. The provisions of this section 20 shall survive the termination of this
Agreement.
21. 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,
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.
22. 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 constitute one
and the same agreement.
23. 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.
24. 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.
25. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company, to:
Xxxxxxx Industries Inc., 000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 Attention:
Xxxxxx Xxxxxx Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP, 000 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Esq. Facsimile: (000) 000-0000
If to the Exchange Agent, to:
State Street Bank and Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxx, XX 00000 Attention: Xxxxxx Xxxx Facsimile: (617) [ ]
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18 and 20 shall survive the termination of this Agreement. Except as
provided in Paragraph 17, upon any termination of this Agreement, you shall
promptly deliver to the Company any funds or property (including, without
limitation, Letters of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
27. 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.
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XXXXXXX INDUSTRIES INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
Accepted as of the date
first above written:
STATE STREET BANK AND TRUST COMPANY
as Exchange Agent
By: _________________________________
Name: ________________________________
Title: _______________________________
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