EXHIBIT 99.3
CONGOLEUM CORPORATION
0000 XXXXXXXXXXXX XXXX
XXXXXXXXXXX, XX 00000
EXCHANGE AGENT AGREEMENT
OCTOBER 2, 1998
First Union National Bank
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Mr. Xxxx Xxxxxx
Assistant Vice President
Ladies and Gentlemen:
Congoleum Corporation, 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 8 5/8% Senior Notes due August 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
8 5/8% Senior Notes due August 1, 2008 (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, dated October 2, 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 meanings assigned to them in the Prospectus.
The Company hereby appoints First Union National Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to First Union National Bank.
The Exchange Offer is expected to be commenced by the Company on or about
October 5, 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
November 2, 1998 or on such later date or time to which the Company may extend
the Exchange Offer (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 prior
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 to the
Exchange Offer specified in the Prospectus under the caption "The Exchange
Offer--Conditions to 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.
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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,"
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
subject to the satisfaction of the conditions set forth in paragraph 4
below.
4. With the approval of the President and Chief Executive Officer or the
Senior Vice President--Finance and 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
Original Notes" 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 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, the 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 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 (or Agent's Message in lieu
thereof) and any other required documents. 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 advises you that it
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
to the Exchange Offer" or otherwise, you shall as soon as practicable after
such notice and 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:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of Original Notes, the Letter of Transmittal, the
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Notice of Guaranteed Delivery, the Prospectus or any other documents
prepared by the Company in connection with the Exchange Offer or any
signatures or endorsements other than your own and will not be required
to and will make no representation as to the validity, value or
genuineness of the Exchange Offer or any disclosure materials in
connection therewith; 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 indemnity reasonably
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 negligence, 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 and indemnified in
acting in good faith in reliance upon any instructions, 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,
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;
(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 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 0000
Xxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Company and Patterson, Belknap, Xxxx &
Xxxxx 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
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
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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 it to decide whether to extend the Exchange
Offer. You shall prepare a list of persons 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 of ($2,000) 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 ($4,000)
incurred in connection with the Exchange Offer.
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 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 attorneys' 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 negligence, willful breach of this
Agreement, willful misconduct or bad faith. In no case shall the Company be
liable under this indemnity with respect to any claim against you unless
the Company shall be notified by you, by letter 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. The Company shall be
entitled to participate at its own 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.
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
Jersey 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.
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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:
Congoleum Corporation
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx III
Senior Vice President--Finance and
Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Patterson, Belknap, Xxxx & Tyler LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. XxXxxxx, Esq.
Facsimile: (000) 000-0000
If to the Exchange Agent, to:
First Union National Bank
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Mr. Xxxx Xxxxxx
Assistant Vice President
Facsimile: (000) 000-0000
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.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
CONGOLEUM CORPORATION
By: _________________________________
Name: ___________________________
Title: __________________________
Accepted as of the date
first above written:
FIRST UNION NATIONAL BANK,
as Exchange Agent
By: _________________________________
Name: ___________________________
Title: __________________________
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