Exhibit 99.6
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
_________, __, 1999
Bankers Trust Company
Corporate Trust and
Agency Group
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Market Services
Ladies and Gentlemen:
SUPERVALU INC., a Delaware corporation (the "Company"), is offering to
exchange (the "Exchange Offer") all of its outstanding 7 7/8% Notes due 2009 and
7 5/8% Notes due 2004 (the "Original Notes") for an equal principal amount of
its registered 7 7/8% Notes due 2009 and 7 5/8% Notes due 2004, respectively
(the "New Notes" and, together with the Original Notes, the "Notes"), pursuant
to a prospectus (the "Prospectus") included in the Company's Registration
Statement on Form S-4 (File No. 333- ) as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC") and
attached hereto as Exhibit A. The term "Expiration Date" shall mean 5:00 p.m.,
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New York City time, on ______________________, 1999, unless the Exchange Offer
is extended as provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended. Upon execution of this Agreement, Bankers Trust Company will act as
the Exchange Agent for the Exchange Offer (the "Exchange Agent"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers, the form of letter to
clients and the instruction form (collectively, the "Tender Documents") to be
used by holders of Original Notes in order to receive New Notes pursuant to the
Exchange Offer are attached hereto as Exhibit B.
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The Company hereby appoints you to act as Exchange Agent in connection with
the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of the
holders and participants on the day that you are notified by the Company that
the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof after the date thereof and to any persons who become holders
prior to the Expiration Date and to any persons as may from time to time be
requested by the Company. All mailings pursuant to this Section 1 shall be by
first class mail, postage prepaid, unless otherwise specified by the Company.
You shall also accept and comply with telephone requests for information
relating to the Exchange Offer provided that such information shall relate only
to the procedures for tendering Original Notes in (or withdrawing tenders of
Original Notes from) the Exchange Offer. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention:
________.
2. You are to examine Letters of Transmittal and the Original Notes and
other documents delivered or mailed to you, by or for the holders, prior to the
Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii) the Original Notes are in proper form for transfer and (iii) all
other documents submitted to you are in proper form. In each case where a
Letter of Transmittal or other document has been improperly executed or
completed or, for any
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other reason, is not in proper form, or some other irregularity exists, you are
authorized to endeavor to take such action as you consider appropriate to notify
the tendering holder of such irregularity and as to the appropriate means of
resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Original Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Original Notes and other documents
in connection with the Exchange Offer, shall be made by the officers of, or
counsel for, the Company at their written instructions or oral direction
confirmed by facsimile. Any determination made by the Company on such questions
shall be final and binding.
3. At the written request of the Company or its counsel, you shall notify
tendering holders of Original Notes in the event of any termination of the
Exchange Offer and you will return all tendered Original Notes to the persons
entitled thereto, at the expense of the Company.
4. Tender of the Original Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer." Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for one year. New Notes
are to be issued in exchange for Original Notes pursuant to the Exchange Offer
only (i) against deposit with you prior to the Expiration Date or, in the case
of a tender in accordance with the guaranteed delivery procedures outlined in
Instruction 1 of the Letter of Transmittal, within three New York Stock Exchange
trading days after the Expiration Date of the Exchange Offer, together with
executed Letters of Transmittal and other documents required by the Exchange
Offer or (ii) in the event that the holder is a participant in the Depository
Trust Company ("DTC") system, by the utilization of DTC's Automated Tender Offer
Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the date hereof in accordance with SEC Regulation
240.17 Ad. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Notes by causing the Book Entry Facility to transfer such Notes
into your account in accordance with the procedure for such transfer established
by the Book Entry Transfer Facility. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof), or an Agent's Message,
properly completed and duly executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you prior to
the Expiration Date or the guaranteed delivery procedures described in the
Exchange Offer must be complied with.
5. Upon oral or written request of the Company (with written confirmation
of any such oral request thereafter), you will transmit by telephone, and
promptly thereafter confirm in writing to __________________ or such other
persons as the Company may reasonably request, the aggregate number and
principal amount of each series of Original Notes tendered to you and the number
and principal amount of each series of Original Notes properly tendered that
day. In addition, you will also inform the aforementioned persons, upon oral
request made from time to time (with written confirmation of such request
thereafter) prior to the Expiration Date, of such information as they or any of
them may reasonable request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Original Notes. You will hold all items which are deposited for tender
with you after 5:00 p.m. New York City time, on the Expiration Date pending
further instructions from an officer of the Company.
7. If any holder shall report to you that his or her failure to surrender
Original Notes registered in his or her name is due to the loss 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, a bond of indemnity
in an amount and evidenced by such certificate or certificates of a surety, as
may be satisfactory to you and the Company, and (ii) to execute and deliver an
agreement to indemnify the Company and you in such form as is acceptable to you
and the Company. The obligees to be named in each such indemnity bond shall
include the Company and you. You shall report to the
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Company the names of all holders who claim that their Original Notes have been
lost or destroyed and the principal amount of such Original Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such holders may be entitled to receive and you shall arrange for
cancellation of the Original Notes submitted to you or returned by DTC in
connection with ATOP. Such Original Notes shall be forwarded to _____________
for cancellation and retirement as you are instructed by the Company (or a
representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
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The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
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after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the 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,"
herein or in the Exhibits attached hereto or as may be subsequently
requested in writing of you by the Company and agreed to by you in writing
with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Original Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Company in
connection with the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability unless you shall
have been furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as Exchange
Agent specifically covered by this Agreement or supplementing or qualifying
any such action of any officer or agent of such other person or persons as
may be designated or whom you reasonably believe have been designated by
the Company;
(e) may consult with counsel satisfactory to you, including counsel
for the Company, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by you in good faith and in accordance with such advice of such
counsel;
(f) shall not at any time advise any person as to the wisdom of the
Exchange Offer or as to the market value or decline or appreciation in
market value of any Original Notes or New Notes; and
(g) shall not be liable for any action which you may do or refrain
from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred without
gross negligence, bad faith or willful misconduct on the part of the
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Indemnified Party, in connection with the administration of the duties of the
Indemnified Parties hereunder in accordance with this Agreement; provided,
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however, such Indemnified Party shall use its best effort to notify the Company
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by letter, or by cable, telex or telecopier confirmed by letter, of the written
assertion of a claim against such Indemnified Party, or of any action commenced
against such Indemnified Party, promptly after but in any event within 10 days
of the date such Indemnified Party shall have received any such written
assertion of a claim or shall have been served with a summons, or other legal
process, giving information as to the nature and basis of the claim; provided,
however, that failure to so notify the Company shall not relieve the Company of
any liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the Company.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim.
Notwithstanding anything to the contrary set forth herein, you shall be entitled
to retain counsel of your choice in any suit and the Company shall pay the fees,
expenses and disbursements of such counsel. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without an
express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Prospectus and Tender Documents, as they may from
time to time be supplemented or amended, shall be resolved in favor of the
latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
16. 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.
17. 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.
18. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 9 and 12 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Trustee any
certificates for Original Notes or New Notes, funds or property then held by you
as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered or sent by a nationally recognized
overnight courier or by telecopier (with a copy mailed by registered mail,
return receipt requested), and addressed as follows:
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If to Company: SUPERVALU INC.
00000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telecopier No:
Attn:
and a copy to: Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000/6961
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you please
indicate your agreement by signing and returning the enclosed copy of this
Agreement to the Company.
Very truly yours,
By:___________________________
Name:
Title:
Agreed to this day of ______, 1999
BANKERS TRUST COMPANY,
as Exchange Agent
By: _______________________________
Name:
Title:
KRAS/EXCHAGT
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Exhibit C
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Bankers Trust Company
Corporate Trust and Agency Group
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SCHEDULE OF FEES
I. Exchange Agent Acceptance Fees: $________
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Covers review of the Exchange Agent Agreement, the Letter of
Transmittal and other related documentation; establishment of accounts and
systems link with depositories; operational and administrative charges and time
spent in connection with the review, receipt and processing of Letters of
Transmittal, and Agent's Messages.
Note: The fees set forth in this schedule are subject to review of
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documentation. The fees are also subject to change should circumstances warrant.
Out-of-pocket expenses and disbursements, including counsel fees, incurred in
the performance of our duties will be added to the billed fees. Fees for any
services not covered in this or related schedules will be based upon our
appraisal of the services rendered.
We may place orders to buy/sell financial instruments with outside
broker-dealers that we select, as well as with BT or its affiliates. These
transactions (for which normal and customary spreads or other compensation may
be earned by such broker-dealers, including BT or its affiliates, in addition to
the charges quoted above) will be executed on a riskless principal basis solely
for your account(s) and without recourse to us or our affiliates. If you choose
to invest in any mutual fund, BT and/or our affiliates may earn investment
management fees and other service fees/expenses associated with these funds as
disclosed in the mutual fund prospectus provided to you, in addition to the
charges quoted above. Likewise, BT has entered into agreements with certain
mutual funds or their agents to provide shareholder services to those funds. For
providing these shareholder services, BT is paid a fee by these mutual funds
that calculated on an annual basis does not exceed 25 basis points of the amount
of your investment in these mutual funds. In addition, if you choose to use
other services provided by BT or its affiliates, Corporate Trust or other BT
affiliates may be allocated a portion of the fees earned. We will provide
periodic account statements describing transactions executed for your
account(s). Trade confirms will be available upon your request at no additional
charge. If a transaction should fail to close for reasons beyond our control, we
reserve the right to charge our acceptance fee plus reimbursement for legal fees
incurred.
Shares of mutual funds are not deposits or obligations of, or guaranteed by,
Bankers Trust Company or any of its affiliates and are not insured by the
Federal Deposit Insurance Corporation or any other agency of the U.S.
Government. Investments in the mutual funds involve the possible loss of
principal. Please read the prospectus carefully before investing.
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