Exhibit 10.27
FORM OF EXCHANGE AGENT AGREEMENT
____________, 1999
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
G+G Retail, Inc., a Delaware corporation (the "Issuer"), proposes to
make an offer (the "Exchange Offer") to exchange its 11% Senior Notes due 2006
(the "Old Notes") for its 11% Senior Notes due 2006 which have been registered
under the Securities Act of 1933 (the "New Notes"). The terms and conditions of
the Exchange Offer as currently contemplated are set forth in a prospectus,
dated ____________, 1999 (the "Prospectus"), to be distributed to all record
holders of the Old Notes as of ___________, 1999. The Old Notes and the New
Notes are collectively referred to herein as the "Notes."
The Issuer hereby appoints U.S. Bank Trust National Association ("U.S.
Bank Trust") to act as exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. References herein to "you" shall refer to U.S. Bank Trust.
Capitalized terms used but not defined in this letter have the meanings ascribed
to them in the Prospectus.
The Exchange Offer is expected to be commenced by the Issuer on or
about __________ __, 1999. The Letter of Transmittal accompanying the
Prospectus (or in the case of book entry securities, an Agent's Message in lieu
of such Letter of Transmittal) is to be used by the holders of the Old Notes to
accept the Exchange Offer. The Letter of Transmittal contains instructions with
respect to (i) the delivery of certificates for Old Notes tendered in connection
therewith and (ii) the book-entry transfer of Notes to the Exchange Agent's
account. The term "Agent's Message" means a message, transmitted by the Book-
Entry Transfer Facility (as defined below) over its Automated Tender Offer
Program ("ATOP") system to and received by the Exchange Agent and forming a part
of a book-entry confirmation, which states that (i) the Book-Entry Transfer
Facility has received an express acknowledgment from the tendering participant
in ATOP, (ii) such participant has received and agrees to be bound by, and make
the representations and warranties contained in, the Letter of Transmittal (or,
in the case of an Agent's Message relating to guaranteed delivery, the
applicable notice of guaranteed delivery) and (iii) the Issuer may enforce such
Letter of Transmittal against such participant.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_________ __, 1999 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 expressly reserves the right to extend
the Exchange Offer from time to time by giving oral (to be confirmed in writing)
or written notice to you before 9:00 A.M., New York City time, on the business
day following the previously scheduled Expiration Date.
The Issuer expressly reserves the right to extend or terminate the
Exchange Offer, and to refuse to accept for exchange any Old Notes not
theretofore accepted for exchange if any of the conditions set forth in the
Prospectus under the caption "The Exchange Offer - Certain Conditions to the
Exchange Offer" have not been satisfied. The Issuer also expressly reserves the
right to amend the terms of the Exchange Offer in any manner. The Issuer will
give oral (confirmed in writing) or written notice of any amendment, extension,
termination or nonacceptance of Old Notes to you promptly after any amendment,
extension, termination or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will establish an account with respect to the Old 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 system shall make book-entry
delivery of the Old Notes by causing the Book-Entry Transfer Facility to
transfer such Old Notes into your account in accordance with the Book-Entry
Transfer Facility's ATOP procedures for transfer.
2. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (or confirmation of book-entry transfer 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 Old Notes to
ascertain whether: (i) the Letters of Transmittal (or, in the case of a book-
entry transfer, an Agent's Message in lieu of such Letter of Transmittal) and
any required signature guarantees and any other required documents appear to be
duly executed and properly completed in accordance with instructions set forth
therein and (ii) the Old Notes have otherwise been properly tendered. In the
event that a holder of Old Notes tenders such Old Notes pursuant to the
guaranteed delivery procedures described in the Prospectus, you shall, in
addition to the foregoing, comply with the procedures described in the section
of the Prospectus captioned "The Exchange Offer - Guaranteed Delivery
Procedures" and shall examine any Notice of Guaranteed Delivery (as defined in
the Prospectus) delivered or mailed to you by an Eligible Institution (as
defined in the Letter of Transmittal) on behalf of holders of the Old Notes to
ascertain whether it appears to be duly executed and properly completed in
accordance with instructions set forth in that section of the Prospectus. In
each case where the Letter of Transmittal (or an Agent's
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Message in lieu thereof), any required signature guarantees and any other
required documents have been improperly completed or executed or any of the
certificates for Old 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.
3. Any person designated in writing by the Issuer (a "Designated
Officer") (such approval, if given orally, to be confirmed in writing) or any
other party designated by any such Designated Officer in writing may authorize
you to waive any irregularities in connection with any tender of Old Notes
pursuant to the Exchange Offer. You agree not to waive any such irregularities
without the prior consent of a Designated Officer.
4. Tenders of Old 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 Old 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, Old Notes which
any Designated Officer of the Issuer shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
5. You shall promptly advise the Issuer in accordance with the
procedures set forth in paragraph 25 below of any Old Notes that are received
after the Expiration Date and accept the Issuer's instructions with respect to
disposition of such Old Notes.
6. You shall accept tenders:
(a) in cases where the Old 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 such person's authority so to act is submitted;
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including payment of any
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applicable transfer taxes, are fulfilled; and
(d) in all other cases where the requirements set forth in the
instructions in the Letter of Transmittal have been satisfied.
You shall accept partial tenders of Old Notes where so indicated and
as permitted in the Letter of Transmittal or as advised pursuant to paragraph 4
above and deliver certificates
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for Old Notes to the transfer agent for split-up and return any untendered Old
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.
7. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer will notify you of its acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and you, on behalf of the
Issuer, will exchange such Old Notes for New Notes and notify the Issuer and the
Trustee of the completion of that exchange. Delivery of New Notes will be made
on behalf of the Issuer by you at the rate of $1,000 principal amount of New
Notes for each $1,000 principal amount of the corresponding series of Old Notes
tendered promptly after notice (such notice, if given orally, to be confirmed in
writing) of acceptance of said Old Notes by the Issuer; provided, however, that
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in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of (i) certificates for such Old
Notes (or confirmation of book-entry transfer to your account at the Book-Entry
Transfer Facility) and (ii) a Letter of Transmittal (or facsimile thereof) which
appears, after due examination by you pursuant to paragraph 2 hereof, to be
properly completed and duly executed in accordance with instructions set forth
therein, together with any required signature guarantees and any other required
documents or (in the case of a book-entry transfer) an Agent's Message in lieu
of such Letter of Transmittal. Old Notes may be tendered in whole or in part in
denominations of principal amount of $1,000 and integral multiples thereof. You
shall exchange each such Old Note for a New Note having a principal amount equal
to that of the surrendered Old Note.
8. 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, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to 5:00 P.M., New York City time, on
the Expiration Date by following the procedures set forth in the section of the
Prospectus captioned "The Exchange Offer - Withdrawal of Tenders."
9. The Issuer shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuer not to exchange any Old Notes tendered
shall be given orally (and confirmed in writing) or in writing by the Issuer to
you.
10. If, pursuant to the Exchange Offer, the Issuer does not accept
for exchange all or part of the Old Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus under the
caption "The Exchange Offer - Certain Conditions to the Exchange Offer" or
otherwise, you shall promptly after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old 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.
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11. All certificates for reissued Old Notes, unaccepted Old Notes or
for New Notes shall be forwarded by (a) first-class certified mail, return
receipt requested, under a blanket surety bond protecting you from loss or
liability arising out of the non-receipt or non-delivery of such certificates,
(b) by registered mail insured separately for the replacement value of each of
such certificates, or (c) by appropriate book-entry transfer.
12. 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, although you may use agents
previously approved in writing by the Issuer to perform your duties hereunder if
each such agent agrees to be bound by the provisions of this Letter.
13. As Exchange Agent you:
(a) shall have no duties or obligations other than those specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," in
the Letter of Transmittal or herein or as may be subsequently agreed to in
writing by you and the Issuer, provided, however, that in no way will your
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general duty to act in good faith be discharged by the foregoing;
(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 or the Old Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to make any
representation and will make no representation, as to the validity, sufficiency,
value or genuineness of the Exchange Offer;
(c) 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;
(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 and in good faith
believed by you (after due inquiry) to be genuine and to have been signed by the
proper party or parties;
(e) may reasonably act upon any tender, statement, request, 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 reasonably and in good faith
believe (after due inquiry) 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
instructions from any Designated Officer of the Issuer;
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(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities 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 to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such counsel;
(h) shall not advise any person tendering Old 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 Old Notes; and
(i) may resign by delivery of 30 days' prior written notice to the
Issuer, provided such resignation shall not be effective unless a successor
Exchange Agent reasonably acceptable to the Issuer shall have, prior to the
effectiveness of such resignation, assumed your duties hereunder.
14. You shall take such action as may from time to time be requested
by the Issuer or its counsel or any Designated Officer of the Issuer (and such
other action as you may reasonably deem appropriate) to furnish copies of the
Prospectus, the Letter of Transmittal and the Notice of Guaranteed Delivery
accompanying 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
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(or withdrawing from) the Exchange Offer. The Issuer will furnish you with
sufficient copies of such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to:
G+G Retail, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15. You shall advise, by facsimile transmission or telephone, and
promptly thereafter confirm in writing, Xxxxxxx Xxxxxx, Chief Financial Officer
of the Issuer (with a copy to Xxxx Xxxxxxxx, Esq. of Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP), in each case at the addresses set forth below for notices,
and such other person or persons as the Issuer may reasonably 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
number of Old 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 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 on or prior to the Expiration Date, of such other information as
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the Issuer or such person reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Issuer and such persons as the
Issuer may request of reasonable 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 Old Notes tendered, the aggregate principal amount of Old
Notes accepted and deliver said list to the Issuer promptly after the Expiration
Date.
16. Any Letters of Transmittal and Notices of Guaranteed Delivery
which are received by the Exchange Agent 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 Issuer at the
address set forth below for notices.
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 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.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as has previously been agreed to by the parties,
plus reimbursement of your reasonable out-of-pocket expenses after submission to
the Issuer of an itemized statement in reasonable detail.
19. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery and further acknowledge that
you have examined relevant portions mentioned herein of each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and the Notice of Guaranteed Delivery (as they may be
amended from time to time), on the other hand, shall be resolved in favor of the
latter three documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
20. (a) 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, 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 Old 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 Old Notes; provided, however, that the Issuer shall not be liable
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for indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your negligence, willful misconduct or bad faith. In no
case
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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 by
facsimile confirmed by letter, of the assertion of a claim against you or of any
other action commenced against you, promptly after you shall have received any
such 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
suit brought to enforce any such claim. In the event that the Issuer shall
assume the defense of any such suit or threatened action in respect of which
indemnification may be sought hereunder, the Issuer shall not be liable for the
fees and expenses of any additional counsel thereafter retained by you so long
as you consent to the Issuer's retention of counsel, which consent may not be
unreasonably withheld; provided that the Issuer shall not be entitled to assume
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the defense of any such action if representation of both the Issuer and you by
the same legal counsel would, in the written opinion of counsel to you, be
inappropriate due to actual or potential conflicting interests between you and
the Issuer. It is understood that the Issuer shall not be liable under this
paragraph for the fees and expenses of more than one legal counsel for you,
unless such action involves more than one jurisdiction. In the event that the
Issuer shall assume the defense of any such suit, the Issuer shall not
thereafter be liable for the fees and expenses of any counsel retained by you.
(b) You agree that, without the prior written consent of the Issuer,
you will not settle, compromise or consent to the entry of any pending or
threatened claim, action or proceeding in respect of which indemnification could
be sought in accordance with the indemnification provisions of this Agreement
(whether or not you or the Issuer or any of its trustees, or controlling
persons, is an actual or potential party to such claim, action or proceeding),
unless the Issuer consents thereto, which consent shall not be unreasonably
withheld. The Issuer need not pay for any settlement made without its consent.
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, and 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 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.
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.
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25. 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 facsimile number set forth below:
If to the Issuer:
G+G Retail, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with copies to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
and
Shack & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Shack, Esq.
If to the Exchange Agent:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Services
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.
Upon any termination of this
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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.
27. This Agreement shall be binding and effective as of the date
first above written.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
G+G RETAIL, INC.
By:
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Xxxxxxx Xxxxxx
Vice President and Chief Financial Officer
Accepted as of the date first above written:
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
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Name:
Title:
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