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Exhibit 99.1
FORM OF
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of ___________ 1998 between United
States Trust Company of New York, as Exchange Agent (the "Agent") and Decora
Industries, Inc., a corporation organized under the laws of the State of
Delaware (the "Company").
The Company proposes to exchange $1,000 principal amount of the
Company's 11% Senior Secured Notes due 2005, Series B (the "New Notes") in
exchange (the "Exchange Offer") for an equal aggregate principal amount of the
Company's outstanding 11% Senior Secured Notes due 2005 (the "Old Notes")
pursuant to the Registration Rights Agreement dated as of April 29, 1998 among
the Company, Decora, Incorporated ("Decora") and Lazard Freres & Co. LLC, and
the accompanying Letter of Transmittal. The Exchange Offer will terminate at
5:00 p.m. New York City Time on ________________ unless extended by the Company
in its sole discretion (the "Expiration Date"). The New Notes are to be issued
by the Company pursuant to the terms of an Indenture dated as of April 29, 1998
(the "Indenture") among the Company, Decora and United States Trust Company of
New York, as trustee (the "Trustee").
Subject to the provisions hereof, the Company hereby appoints and the
Agent hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Old Notes (the
"Certificates") in accordance with the form of Letter of Transmittal attached
hereto (the "L/T") and with the terms and conditions set forth herein and under
the caption "The Exchange Offer" in the Prospectus.
The Agent has received the following documents in connection with its
appointment:
(1) L/T
(2) a form of Notice of Guaranteed Delivery
(3) the Prospectus
The Agent is authorized and hereby agrees to act as follows:
(a) to address, and deliver by first class mail, in the case of the
initial distribution, and by hand or next day courier, in the
case of any amendments to the initial distribution, a complete
set of the Exchange Offer Documents to each person who, prior to
the Expiration Date, becomes a registered holder of Old Notes
promptly after such person becomes a registered holder of Old
Notes;
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(b) to receive all tenders of Old Notes made pursuant to the Exchange
Offer and stamp the L/T with the day, month and approximate time
of receipt;
(c) to examine each L/T and Old Notes received to determine that all
requirements necessary to constitute a valid tender have been met
The Agent shall be entitled to rely on the DTC electronic
messages sent regarding ATOP delivery of the Notes to the Agent's
account at DTC from the DTC participants listed on the DTC
position listing provided to the Agent;
(d) to take such actions necessary and appropriate to correct any
irregularity or deficiency associated with any tender not in
proper order;
(e) to follow instructions given by Xxxxxxx Xxxxxxx of the Company,
with respect to the waiver of any irregularities or deficiencies
associated with any tender;
(f) to hold all valid tenders subject to further instructions from
Xxxxxxx Xxxxxxx of the Company;
(g) to render a written report, in form and substance satisfactory to
the Company, on each business day during the Exchange Offer and
promptly confirm, by telephone, the information contained therein
to Xxxxxxx Xxxxxxx at 0 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000
telephone: (000) 000-0000 , facsimile: (000) 000-0000;
(h) to follow and act upon any written amendments, modifications or
supplements to these instructions, any of which may be given to
the Agent by the President, any Vice President or the Secretary
of the Company or such other person or persons as they shall
designate in writing;
(i) to return to the presentors, in accordance with the provisions of
the L/T, any Old Notes that were not received in proper order and
as to which the irregularities or deficiencies were not cured or
waived;
(j) in the event the Exchange Offer is consummated, to deliver
authenticated Exchange Notes to tendering Noteholders, in
accordance with the instructions of such Noteholder's specified
in the respective L/T's, as soon as practicable after receipt
thereof;
(k) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other
requirements are fulfilled in connection with any request for
issuance of the Exchange Notes in a name other than that of the
registered owner of the Old Notes;
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(l) to deliver to the Company, on a daily basis , a transfer journal
detailing all exchanges of New Notes for Old Notes pursuant to
the Exchange Offer and, if requested by the Company, all
certificates received under the Exchange Offer, together with any
related assignment forms and other documents; and
(m) to take all other actions reasonable and necessary in the good
faith judgment of the Agent, to effect the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those specifically set
forth herein;
(b) not be required to refer to any documents for the performance of
its obligations hereunder other than this Agreement, the L/T and
the documents required to be submitted with the L/T; other than
such documents, the Agent will not be responsible or liable for
any directions or information in the Prospectus or any other
document unless the Agent specifically agrees thereto in writing;
(c) not be required to act on the directions of any person, including
the persons named above, unless the Company provides a corporate
resolution to the Agent or other evidence satisfactory to the
Agent of the authority of such person;
(d) not be required to and shall make no representations and have no
responsibilities as to the validity, accuracy, value or
genuineness of (i) the Exchange Offer, (ii) any Certificates,
L/T's or documents prepared by the Company in connection with the
Exchange Offer or (iii) any signatures or endorsements, other
than its own;
(e) not be obligated to take any legal action hereunder that might,
in its judgement, involve any expense or liability, unless it has
been furnished with reasonable indemnity by the Company;
(f) be able to rely on and shall be protected in acting on the
written or oral instructions with respect to any matter relating
to its actions as Agent specifically covered by this Agreement,
of any officer of the Company authorized to give instructions
under paragraph (c) above;
(g) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or any
other document or security delivered to it and believed by it
reasonably and in good faith to be genuine and to have been
signed by the proper party or parties;
(h) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person executing or
delivering or purporting to execute or deliver any
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document or property under this Agreement and shall have no
responsibility with respect to the use or application of any
property delivered by it pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it (including
counsel for the Company or counsel of the Agent) and the advice
or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not advise, any
person delivering an L/T pursuant to the Exchange Offer as to the
value of the consideration to be received;
(k) not be liable for anything which it may do or refrain from doing
in connection with this Agreement except for its own gross
negligence, willful misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof, unless
evidenced by a writing delivered to the Agent signed by the
proper authority or authorities and, if the Agent's duties or
rights are affected, unless the Agent shall give its prior
written consent thereto;
(m) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to
enforce any obligation of any person to perform any other act;
and
(n) have the right to assume, in the absence of written notice to the
contrary from the proper person or persons, that a fact or an
event by reason of which an action would or might be taken by the
Agent does not exist or has not occurred without incurring
liability for any action taken or omitted, or any action suffered
by the Agent to be taken or omitted, in good faith or in the
exercise of the Agent's best judgement, in reliance upon such
assumption.
The Agent hereby acknowledges receipt of $3,500 as full and complete
consideration for its services under this Agreement .
The Company covenants and agrees to reimburse the Agent for, indemnify
it against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of counsel and allocated cost of staff
counsel) that may be paid or incurred or suffered by it or to which it may
become subject without gross negligence, willful misconduct or bad faith on its
part by reason of or as a result of its compliance with the instructions set
forth herein or with any additional or supplemental written or oral instructions
delivered to it pursuant hereto, or which may
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arise out of or in connection with the administration and performance of its
duties under this Agreement.
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York and shall insure to the benefit of, and the
obligations created hereby shall be binding upon, the successors and assigns of
the parties hereto. The parties agree to submit and to the exclusive
jurisdiction of the federal or state courts located in the State of New York,
New York County.
Unless otherwise expressly provided herein, all notices, requests,
demands and other communications hereunder shall be in writing, shall be
delivered by hand, facsimile or by First Class Mail, postage prepaid, shall be
deemed given when received and shall be addressed to the Agent and the Company
at the respective addresses listed below or to such other addresses as they
shall designate from time to time in writing, forwarded in like manner.
If to the Agent: United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to: Xxxxxxx X. Xxxxxxx
Decora Industries, Inc.
0 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: J. Xxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized, all as of
the day and year first above written.
UNITED STATES TRUST COMPANY OF NEW YORK
By: ________________________________
Assistant Vice President
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