EXHIBIT 10.2
EXCHANGE AGENT AGREEMENT
____________, 1997
American Stock Transfer & Trust Company, New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Ladies and Gentlemen:
Xxxxxx Petroleum Company (the "Issuer") proposes to make an offer (the
"Exchange Offer") to exchange its outstanding 10.125% Series A Senior
Subordinated Notes due 2002 (the "Old Notes"), of which an aggregate of
$36,000,000 in principal amount is outstanding as of the date hereof, for an
equal principal amount of newly issued 10.125% Series B Senior Subordinated
Notes due 2002 (the "New Notes") which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"). The Old Notes and New Notes are
collectively referred to herein as the "Notes." The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
_____, 1997 (the "Prospectus"), proposed to be distributed to all record holders
of the Old Notes and beneficial interests therein. Terms used and not defined
herein have the meanings set forth in the Prospectus or the Letter of
Transmittal (except that the term "Old Notes" shall include beneficial interests
therein, held by or through participants in The Depository Trust Company (the
"Book-Entry Transfer Facility") (Book-Entry Interests") and Old Notes held in
definitive registered form ("Definitive Registered Notes")).
The Issuer hereby appoints American Stock Transfer & Trust Company, New
York to act as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to American Stock
Transfer & Trust Company, New York.
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 Old Notes to accept the Exchange Offer, and contains
certain instructions with respect to the delivery of Book-Entry Interests and
Definitive Registered Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City time,
____________, 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 expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (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 amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the section "The Exchange Offer -- Conditions
to the Exchange Offer." The Issuer will give oral (confirmed in writing) or
written notice 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," as
specifically set forth in the Letter of Transmittal, and 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 Old Notes at 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 preexisting 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 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
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, each of the
certificates for Old Notes in the case of Definitive Registered Notes, or, in
the case of Book-Entry Interests, confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility via the Book-Entry Transfer
Facility's Automated Tender Offer Program and any accompanying Agent's Message
and any other documents delivered or mailed to you by or for holders of the Old
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 Old Notes have otherwise been
properly tendered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed, 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.
4. With the approval of the Chief Financial Officer of the Company or the
Company Secretary (such approval, if given orally, to be confirmed in writing)
or any other party designated by such an officer in writing, you are authorized
to waive any irregularities in connection with any tender of Old Notes pursuant
to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the section of
the Prospectus captioned "The Exchange Offer -- Procedures for Tendering
Outstanding Notes" or in the Letter of Transmittal, 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 5, Old Notes which the
Chief Financial Officer of the Company or the Company Secretary or any other
party designated by such an officer 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 Old Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. 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;
2
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
c. from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
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 Old
Notes properly tendered; and you, on behalf of the Issuer, will exchange such
Old Notes for New Notes and cause such Old Notes to be canceled. 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 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
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of properly endorsed Definitive
Registered Notes or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility, or a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees (or
in lieu thereof an Agent's Message, where applicable) and any other required
document. You shall issue New 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, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
10. 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
(such notice, if given orally, shall be 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 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 -- Conditions to the Exchange Offers" or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange
Offer effect the appropriate book-entry transfer of the unaccepted Old 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. You are not authorized to pay or offer to pay any concessions,
commission or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. 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 Old
Notes, and will not be required to and will make no representations as to the
validity, value or genuineness of the Exchange Offer; 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 reasonable indemnity;
3
c. shall not be liable to the Issuer 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 reasonably rely on and shall be protected in
acting in good faith in reliance upon any 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 rely on and shall be protected in acting upon written or oral
instructions from any officer of the Issuer with respect to the Exchange
Offer;
f. 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
g. may consult with your counsel 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 written opinion of such counsel.
14. 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 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. All other requests for information
relating to the Exchange Offer shall be directed to:
Xxxxxx Petroleum Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Corporate Secretary
15. You shall advise by facsimile transmission or telephone, and promptly
thereafter, confirm in writing to:
Xxxx X. Xxxxxxxxx
Xxxxxx Petroleum Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
and such other person or persons as the Company may request, daily, and more
frequently if reasonably requested, up to and including the Expiration Date, as
to the principal amount of the 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 as the
Issuer requests from time to time prior to the Expiration Date of such other
information as they, it or he reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Issuer and such persons
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 list of persons who failed to tender or whose tenders were not
accepted and the aggregate principal amount of Old Notes not tendered or Old
Notes not accepted and deliver said list to the Issuer 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 Old Notes tendered and
the aggregate principal amount of Old Notes accepted and deliver said list to
the Issuer.
16. 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 Issuer.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of [ ] 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 [ ]) incurred in the connection
with the Exchange Offer.
18. 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 that they relate to your duties 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 the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent
which shall be controlled by this Agreement.
19. The Issuer agrees to indemnify and hold you harmless in your capacity
as Exchange Agent hereunder against any liability, cost or expense, including
reasonable attorneys' fees, arising out 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, 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 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 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 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 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 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 shall 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, the Issuer shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Issuer shall retain
counsel
5
reasonably satisfactory to you to defend such suit. You shall not compromise or
settle any such action or claim without the consent of the Issuer.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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 Issuer:
Xxxxxx Petroleum Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx, Chief Financial Officer
with a copy to:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
If to the Exchange Agent:
American Stock Transfer & Trust
Company, New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
6
25. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 17 and 19 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Issuer 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 except as provided in Section 16.
26. 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.
XXXXXX PETROLEUM COMPANY
By:_____________________________________________
Name:
Title:
Accepted as the date first above written:
AMERICAN STOCK TRANSFER & TRUST
COMPANY, NEW YORK
By:_______________________________________
Name:
Title:
7
