1
Exhibit 10.7
SPARKLING SPRING WATER GROUP LIMITED
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(000) 000-0000
______________, 1997
The ____________________
Corporate Trust Trustee Administration
___________________
______________
New York, NY _____
Re: EXCHANGE AGENT AGREEMENT
Ladies and Gentlemen:
Sparkling Spring Water Group Limited, a Nova Scotia corporation (the
"Issuer"), and the Guarantors (the "Guarantors") identified in the Registration
Statement (as defined herein) propose to make an offer (the "Exchange Offer") to
exchange up to $100,000,000 aggregate principal amount of the Issuer's 11 1/2%
Senior Subordinated Notes due 2007 (the "Exchange Notes") (and the related
guarantees of the Guarantors) for a like principal amount of the Issuer's
outstanding 11 1/2% Senior Subordinated Notes due 2007 (the "Private Notes")
(and the related guarantees of the Guarantors). The terms and conditions of the
Exchange Offer are set forth in a prospectus (the "Prospectus") included in the
Issuer's and the Guarantors' registration statement on Form F-4 (File No.
333-_____), as amended (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission"), and proposed to be distributed to
all record holders of the Private Notes. The Private Notes and the Exchange
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 the Letter of Transmittal which constitutes part of the
Prospectus.
The Issuer hereby appoints ____________________ to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "You" shall refer to ____________________.
The Exchange Offer is expected to be commenced by the Issuer on or about
______________, 1997. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Private Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of Private Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
______________, 1997, or on such later date or time to which the Issuer may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Issuer
2
expressly reserves the right to extend the Exchange Offer from time to time, and
may extend the Exchange Offer by giving notice (such notice if given orally, to
be confirmed in writing) to you before 9:00 A.M., New York City time, on the
next New York Stock Exchange trading day after the previously scheduled
Expiration Date.
The Issuer expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Private
Notes not theretofore accepted for exchange. The Issuer will give notice (such
notice if given orally, to be confirmed in writing) of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically set
forth in the 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.
2. You will establish an account with respect to the Private Notes at the
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two New York Stock Exchange trading days
after the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make
book-entry delivery of the Private Notes by causing the Book-Entry
Transfer Facility to transfer such Private Notes by causing the Book-Entry
Transfer Facility to transfer such Private Notes into your account in
accordance with the Book-Entry Transfer Facility's procedures for such
transfer.
3. You are to examine each of the Letters of Transmittal and certificates for
Private Notes (and confirmation of book-entry transfers of Private Notes
into your account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Private
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, and (ii) the Private 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 where book-entry confirmations are not in due and proper form
or omit certain information, or any of the certificates for Private 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 Chairman, the President or any of the Vice
Presidents of the Issuer (such approval, if given orally, to be confirmed
in writing) or any other person
2
3
designate by such an officer in writing, you are authorized to waive any
irregularities in connection with any tender of Private Notes pursuant to
the Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange
Offer--Procedures for Tendering," and Private 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, Private Notes which the Chairman, the President, the
Executive Vice President, the Senior Vice President or any of the Vice
Presidents of the Issuer or any other officer of the Issuer 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).
6. You shall advise the Issuer with respect to any Private Notes received
subsequent to the Expiration Date and accept its instructions with respect
to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private 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 Private Notes
provided that customary transfer requirements, including those
regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Private
Notes to the transfer agent for split-up and return any untendered Private 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 Issuer will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Private Notes properly tendered and you, on behalf of the
Issuer, will exchange such Private Notes for Exchange Notes and cause such
Private Notes to be canceled. Delivery of Exchange Notes will be made on
behalf of the Issuer by you at the rate of $1,000 principal amount of
Exchange Notes for each $1,000 principal amount of Exchange Notes if given
orally, to be confirmed in writing ***TEXT CUT OFF*** Private Notes by the
Issuer; provided, however, that in all cases, Private Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt
by you of certificates for such Private Notes (or confirmation of
book-entry transfer into
3
4
your account at the Book-Entry Transfer Facility), a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other required documents. Unless
otherwise instructed by the Issuer, 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, Private 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.
10. The Issuer shall not be required to exchange any Private Notes tendered in
any of the conditions set forth in the Exchange Offer are not met. Notice
of any decision by the Issuer not to exchange any Private Notes tendered
shall be given (and confirmed in writing) by the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Private 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 those certificates for unaccepted
Private 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).
12. All certificates for reissued Private Notes, unaccepted Private Notes or
for Exchange Notes (other than those effected by book-entry transfer)
shall be forwarded by first-class certified mail, return receipt
requested.
13. 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.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those specifically
set forth in the Prospectus, the Letter of Transmittal or herein, or
as may be subsequently agreed to in writing by you and the Issuer;
(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 Private 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 of genuineness of the Exchange Offer;
(c) shall not be obligated to taken any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
4
5
(d) may reasonably rely on and shall be protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram
or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed 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 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
instruments from any officer of the Issuer;
(g) may consult with your counsel with respect to any questions relating
to your duties and responsibilities, and the 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 opinion of such
counsel; and
(h) shall not advise any person tendering Private Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all
or any portion of Private Notes or as to the market value, decline
or appreciation in market value of any Private Notes that may or may
not occur as a result of the Exchange Offer or as to the market
value of the Exchange Notes;
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.
15. You shall take such action as may from time to time be requested by the
Issuer 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 Issuer 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 Issuer will furnish you with
copies of such documents at your request.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxxxx X. Xxxxxx, President of the Issuer
(telephone number (000) 000-0000[?], facsimile number (203) ___-____) and
such other person or persons as the Issuer 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 aggregate principal amount of Private Notes which have been duly
tendered pursuant to the Exchange Offer and the items received by you
pursuant to the Exchange Offer and
5
6
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 Issuer or any
such other person or persons upon oral request made from time to time
prior to the Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without limitation,
the granting by you to the Issuer and such person as the Issuer 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 Issuer 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 Private Notes tendered, the aggregate
principal amount of Private Notes accepted and the identity of any
broker-dealer if you have knowledge that such person is a broker-dealer
who will receive Exchange Notes for its own account in exchange for
Private Notes and the aggregate principal amount of Exchange Notes
delivered to each, and deliver said list to the Issuer.
17. 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 two years, whichever is longer, and
thereafter shall be delivered by you to the Issuer. You shall dispose of
unused Letters of Transmittal and other surplus materials as instructed by
the Issuer.
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 Issuer, 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.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them.
Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnifications of you as Exchange Age, which shall be controlled by this
Agreement.
21. The Issuer 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 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 nay transfer of Private Notes reasonably believed by
you in good faith to be authorized,
6
7
and in delaying or refusing in good faith to accept any tenders or effect
any transfer of Private Notes; provided, however that anything in this
Agreement to the contrary notwithstanding, the Issuer 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 Issuer be liable under this indemnity with respect to
any claim against you unless the Issuer shall be notified by you, by
letter or cable 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 Issuer shall be
entitled to participate, at its own expense, in the defense of any such
claim or other action, and, if the Issuer so elects, the Issuer 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 Issuer
shall not thereafter be responsible for the subsequently incurred fees and
disbursements of legal counsel for you under this paragraph, so long as
the issuer shall retain counsel reasonably satisfactory to you to defend
such action, and unless the Issuer is also a party to such proceeding and
you have reasonably determined in good faith that joint representation
would be inappropriate. You understand and agree that the Issuer shall not
be liable under this paragraph for the fees and expenses of more than one
legal counsel for you; provided, however, that this sentence shall not be
construed to prohibit you from engaging successor counsel to continue to
represent you in connection with a proceeding under this paragraph in the
event that you have terminated counsel initially chosen by you or such
counsel has terminated its representation of you.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Issuer understands that you are required, in certain
instances, to deduct thirty-one percent (31%) with respect to interest
paid on the Exchange Notes and proceeds from the sale, exchange,
redemption or retirement of the Exchange Notes from holders who have not
supplied their correct Taxpayer Identification Numbers or required
certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
23. You shall notify the Issuer of the amount of any transfer taxes payable in
respect of the exchange of Private Notes and, upon receipt of a written
approval from the Issuer, 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 Private Notes, your check in the
amount of all transfer taxes so payable, and the Issuer shall reimburse
you for the amount of any and all transfer taxes payable in respect of the
exchange of Private Notes; provided, however, that you shall reimburse the
Issuer for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall be
construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of law principles.
7
8
25. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto 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 Private Notes or Exchange Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
26. 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.
27. 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.
28. 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.
29. 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 Issuer, to:
Sparkling Spring Water Water Group Limited
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (203) ___-____
Attention: Xxxxxx X. Xxxxxx
President
with a copy to:
Xxxxxxxx & Xxxx LLP
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
8
9
If to the Exchange Agent, to:
________________________
________________________
________________________
New York, NY
Telephone:
Telecopy: (212) ___-____
Attention: Corporate Trust Trustee Administration
30. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 17, 19, 21, 23 and 24 shall survive the termination
of this Agreement. Upon any termination of this Agreement you shall
promptly deliver to the Issuer any certificates for Notes, funds or
property then held by you as Exchange Agent under this Agreement.
31. 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.
SPARKLING SPRING WATER GROUP LIMITED
By:
---------------------------------
Name:
Title:
Accepted as of the date first above written:
____________________, as Exchange Agent
By:
------------------------------------
Name:
Title:
9
10
SCHEDULE I
FEE SCHEDULE FOR EXCHANGE AGENT SERVICES
$2,500 plus $500 per extension.
