Exhibit 4.4
FORM OF EXCHANGE AGENT AGREEMENT
Date
Xxxxxx Trust and Savings Bank
12th Floor
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
______________________________, a Delaware corporation (the "Company")
hereby appoints Xxxxxx Trust and Savings Bank ("Xxxxxx Trust") to act as
exchange agent (the "Exchange Agent") in connection with an exchange offer by
the Company to exchange an aggregate principal amount of up to $_______________
of its __________________________ (the "New Notes"), which have been registered
under the Securities Act of 1933, as amended, for a like principal amount of its
outstanding __________________________ (the "Old Notes"). The terms and
conditions of the exchange offer are set forth in a Prospectus, dated
__________________, 199_ (as the same may be amended or supplemented from time
to time, the "Prospectus"), and in the related Letter of Transmittal, which
together constitute the "Exchange Offer." Capitalized terms used herein and not
defined shall have the respective meanings ascribed thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company and Xxxxxx Trust contained herein and subject to the terms and
conditions hereof, the following sets forth the agreement between the Company
and Xxxxxx Trust as Exchange Agent for the Exchange Offer:
1. Appointment and Duties as Exchange Agent.
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(a) The Company hereby authorizes Xxxxxx Trust to act as Exchange Agent in
connection with the Exchange Offer and Xxxxxx Trust agrees to act as Exchange
Agent in connection with the Exchange Offer. As Exchange Agent, Xxxxxx Trust
will perform those services as are outlined herein or which are customarily
performed by an exchange agent in connection with an exchange offer of like
nature, including, but not limited to, accepting tenders of the Old Notes,
assisting the Company in the preparation of the documentation necessary to
effect the transactions herein contemplated (without assuming responsibility
for
such documentation, unless such information has been furnished to the Company in
writing by Xxxxxx Trust).
(b) The Company acknowledges and agrees that Xxxxxx Trust has been retained
pursuant to this Agreement to act solely as Exchange Agent in connection with
the Exchange Offer, and in such capacity, Xxxxxx Trust shall perform such duties
as are outlined herein and which are specifically set forth in the section of
the Prospectus captioned "The Exchange Offer" and in the Letter of Transmittal;
provided, however, that in no way xxxx Xxxxxx Trust's general duty to act in
good faith and without gross negligence or willful misconduct be discharged by
the foregoing.
(c) Xxxxxx Trust will examine each of the Letters of Transmittal (or
electronic instructions transmitted by the Depository Trust Corporation (the
"DTC Transmissions") and certificates for the Old Notes and any other documents
delivered or mailed to Xxxxxx Trust by or for holders of the Old Notes (or any
Book-Entry Confirmations (as set forth in the Prospectus) received by Xxxxxx
Trust with respect to 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 the instructions set forth therein (or that the DTC
Transmission contains the proper information required to be set forth therein)
and (ii) the Old Notes have otherwise been properly tendered (or that the Book-
Entry Confirmations are in due and proper form and contain the information
required to be set forth therein). In each case where the Letters of
Transmittal or any other documents have been improperly completed or executed
(or the DTC Transmissions are not in due and proper form or omit certain
information) or certificates for the Old Notes are not in proper form for
transfer (or the Book-Entry Confirmations are not in due and proper form or omit
certain information) or some other irregularity in connection with the tender or
acceptance of the Old Notes exists, Xxxxxx Trust will endeavor, subject to the
terms and conditions of the Exchange Offer, to advise the tendering holders of
Old Notes of the irregularity and to take any other action as may be necessary
or advisable to cause such irregularity to be corrected. Notwithstanding the
above, Xxxxxx Trust shall not be under any duty to give any notification of any
irregularities in tenders or incur any liability for failure to give any such
notification.
(d) With the approval of the President, any Senior Vice President, any
Executive Vice President, any Vice President or the Treasurer or any Assistant
Treasurer of the Company (such approval, if given orally, to be confirmed in
writing) or any other party designated by any such officer, Xxxxxx Trust is
authorized to waive any irregularities in connection with any tender of the Old
Notes pursuant to the Exchange Offer.
(e) Tenders of the 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"
and the Old Notes shall be considered properly tendered only when tendered in
accordance with such procedures set forth therein. Notwithstanding the
provisions of this paragraph, the Old Notes which the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer,
any Assistant Treasurer or any other designated officer of the
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Company, shall approve (such approval, if given orally, to be confirmed in
writing) as having been properly tendered shall be considered to be properly
tendered.
(f) Xxxxxx Trust shall advise the Company with respect to any Old Notes
received as soon as possible after 5:00 p.m., New York City time, on the
Expiration Date and accept its instructions with respect to disposition of the
Old Notes.
(g) Xxxxxx Trust shall (i) ensure that each Letter of Transmittal and, if
required pursuant to the terms of the Exchange Offer, the related Old Notes or a
bond power are duly executed (with signatures guaranteed where required) by the
appropriate parties in accordance with the terms of the Exchange Offer; (ii) in
those instances where the person executing the Letter of Transmittal (as
indicated on the Letter of Transmittal) is acting in a fiduciary or
representative capacity, ensure that proper evidence of his or her authority so
as to act is submitted; (iii) in those instances where the Old Notes are
tendered by persons other than the registered holder of such Old Notes, ensure
that the customary transfer requirements, including any applicable transfer
taxes, and the requirements imposed by the transfer restrictions on the Old
Notes (including any applicable requirements for certification, legal opinions
or other information) are fulfilled; (iv) ensure that the Old Notes tendered in
part are tendered in principal amounts of $1,000 and integral multiples thereof;
and (v) deliver certificates for the Old Notes tendered in part to the transfer
agent for split-up and shall return any untendered Old Notes or Old Notes which
have not been accepted by the Company to the holders of such Old Notes (or in
the case of Old Notes tendered by book-entry transfer, such non-exchanged Old
Notes will be credited to an account maintained with the Book-Entry Transfer
Facility) promptly after the expiration or termination of the Exchange Offer.
(h) Upon acceptance by the Company of any Old Notes duly tendered pursuant
to the Exchange Offer (such acceptance if given orally, to be confirmed in
writing), Xxxxxx Trust will cause the New Notes in exchange therefor to be
issued as promptly as possible (subject to receipt from the Company of
appropriate certificates under the related Indenture) and Xxxxxx Trust will
deliver such New Notes on behalf of the Company at the rate of $1,000 principal
amount of New Notes for each $1,000 principal amount of the Old Notes tendered
as promptly as possible after acceptance by the Company of the Old Notes in
exchange and notice (such notice if given orally, to be confirmed in writing) of
such acceptance by the Company; provided, however, that in all cases, the Old
Notes tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by Xxxxxx Trust of certificates for such Old Notes (or a Book-
Entry Confirmation), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents (or a properly completed DTC Transmission). Unless
otherwise instructed by the Company, Xxxxxx Trust shall issue the New Notes only
in denominations of $1,000 or any integral multiple thereof.
(i) Tendered pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, the Old
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Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or
prior to the Expiration Date in accordance with the terms of the Exchange Offer.
(j) Notice of any decision by the Company not to exchange any Old Notes
tendered shall be given by the Company either orally (if given orally, to be
confirmed in writing) or in a written notice to Xxxxxx Trust.
(k) If, pursuant to the Exchange Offer, the Company 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,
Xxxxxx Trust shall, upon notice from the Company (such notice if given orally,
to be confirmed in writing), promptly after the expiration or termination of the
Exchange Offer return such certificates for unaccepted Old Notes (or effect
appropriate Book-Entry Confirmation), together with any related required
documents and the Letters of Transmittal (or DTC Transmissions) relating thereto
that are in Xxxxxx Trust's possession, to the persons who deposited such
certificates.
(l) Certificates for reissued Old Notes, unaccepted Old Notes or New Notes
shall be forwarded by (a) first-class certified mail, return receipt requested
under a blanket surety bond obtained by Xxxxxx Trust protecting Xxxxxx Trust 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 by Xxxxxx Trust
separately for the replacement value of each such certificate.
(m) Xxxxxx Trust is not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, commercial bank, trust
company or other nominee or to engage or use any person to solicit tenders.
(n) As Exchange Agent, Xxxxxx Trust:
(i) shall have no duties or obligations other than those specifically
set forth in the Prospectus, the Letter of Transmittal or herein or as may be
subsequently agreed to in writing;
(ii) will make no representations and will have no responsibilities as
to the validity, value or genuineness of any of the certificates for the Old
Notes deposited pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offer; provided, however, that in no way xxxx Xxxxxx Trust's general
duty to act in good faith and without gross negligence or willful misconduct be
limited by the foregoing;
(iii) shall not be obligated to take any legal action hereunder which
might in Xxxxxx Trust's reasonable judgment involve any expense or liability,
unless Xxxxxx Trust shall have been furnished with reasonable indemnity;
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(iv) 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 Xxxxxx Trust and reasonably believed by
Xxxxxx Trust to be genuine and to have been signed by the proper party or
parties;
(v) may reasonably act upon any tender, statement, request, comment,
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 Xxxxxx Trust believes in
good faith to be genuine and to have been signed or represented by a proper
person or persons acting in a fiduciary or representative capacity (so long as
proper evidence of such fiduciary's or representative's authority so to act is
submitted to Xxxxxx Trust) and Xxxxxx Trust examines and reasonably concludes
that such evidence properly establishes such authority;
(vi) may rely on and shall be protected in acting upon written or oral
instructions from the President, any Senior Vice President, any Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer or any
other designated officer of the Company;
(vii) may consult with its own counsel with respect to any questions
relating to Xxxxxx Trust's 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 to be taken by Xxxxxx Trust
hereunder in good faith and in accordance with the written opinion of such
counsel; and
(viii) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all or any
portion of its Old Notes or as to the market value, decline or appreciation in
market value of any Old Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the New Notes.
(o) Xxxxxx Trust shall take such action as may from time to time be
requested by the Company (and such other action as Xxxxxx Trust 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 tendering into (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request.
(p) Xxxxxx Trust shall advise orally and promptly thereafter confirm in
writing to the Company and such other person or persons as the Company may
request, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise reasonably requested) up to and including the
Expiration Date, the aggregate principal amount
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of the Old Notes which have been duly tendered pursuant to and in compliance
with the terms of the Exchange Offer and the terms received by Xxxxxx Trust
pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, Xxxxxx Trust will also provide, and cooperate in making
available to the Company, or any such other person or persons upon request (such
request if made orally, to be confirmed in writing) made from time to time, such
other information as the Company may reasonably request. Such cooperation shall
include, without limitation, the granting by Xxxxxx Trust to the Company, and
such person or persons as the Company may request, access to those persons on
Xxxxxx Trust's staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received adequate information in sufficient detail to enable the Company to
decide whether to extend the Exchange Offer. Xxxxxx Trust shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of the Old Notes tendered, the aggregate principal amount of the Old Notes
accepted and deliver said list to the Company.
(q) Letters of Transmittal, Book-Entry Confirmations, DTC Transmissions and
Notices of Guaranteed Delivery shall be stamped by Xxxxxx Trust as to the date
and the time of receipt thereof and shall be preserved by Xxxxxx Trust for a
period of time at least equal to the period of time Xxxxxx Trust preserves other
records pertaining to the transfer of securities, or one year, whichever is
longer, and thereafter shall be delivered by Xxxxxx Trust to the Company. Xxxxxx
Trust shall dispose of unused Letters of Transmittal and other surplus materials
by returning them to the Company.
(r) Xxxxxx Trust hereby expressly waives any lien, encumbrance or right of
set-off whatsoever that Xxxxxx Trust may have with respect to funds deposited
with it for the payment of transfer taxes by reasons of amounts, if any,
borrowed by the Company, or any of its subsidiaries or affiliates pursuant to
any loan or credit agreement with Xxxxxx Trust or for compensation owed to
Xxxxxx Trust hereunder or for any other matter.
2. Compensation.
In consideration of Xxxxxx Trust's acceptance of the appointment set forth
in Paragraph 1 above, the Company agrees to (i) pay Xxxxxx Trust a fee for all
services rendered under the foregoing appointment of $______ and (ii) reimburse
Xxxxxx Trust for any reasonable out-of-pocket expenses incurred as Exchange
Agent in performing the services described herein; provided, however, that
Xxxxxx Trust shall not be entitled to reimbursement for the fees or
disbursements of its legal counsel without the prior written consent of the
Company.
3. Indemnification.
(a) The Company hereby agrees to protect, defend, indemnify and hold
harmless Xxxxxx Trust against and from any and all costs, losses, liabilities,
expenses (including
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reasonable counsel fees and disbursements) and claims imposed upon or asserted
against Xxxxxx Trust on account of any action taken or omitted to be taken by
Xxxxxx Trust in connection with its acceptance of or performance of its duties
under this Agreement and the documents related thereto as well as the reasonable
costs and expenses of defending itself against any claim or liability arising
out of or relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination, and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
Xxxxxx Trust's bad faith, gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnification agreement with respect to
any claim against Xxxxxx Trust unless the Company shall be notified by Xxxxxx
Trust, by letter, of the written assertion of a claim against Xxxxxx Trust or of
any other action commenced against Xxxxxx Trust, reasonably promptly after
Xxxxxx Trust shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company may assume the defense of any pending
or threatened action against Xxxxxx Trust in respect of which indemnification
may be sought hereunder, in which case the Company shall not thereafter be
responsible for the fees and disbursements of legal counsel for Xxxxxx Trust
under this paragraph; provided that the Company shall not be entitled to assume
the defense of any such action if the named parties to such action include both
the Company and Xxxxxx Trust and representation of both parties by the same
legal counsel would, in the written opinion of counsel for Xxxxxx Trust, be
inappropriate due to actual or potential conflicting interests between them. It
is understood that the Company shall not be liable under this paragraph for the
fees and disbursements of more than one legal counsel for Xxxxxx Trust. In the
event that the Company shall assume the defense of any such suit, the Company
shall not therewith be liable for the fees and expenses of any counsel retained
by Xxxxxx Trust.
(b) Xxxxxx Trust agrees that, without the prior written consent of the
Company (which consent shall not be unreasonably withheld), it will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provision of this Agreement (whether or
not Xxxxxx Trust or the Company or any of its directors, officers and
controlling persons is an actual or potential party to such claim, action or
proceeding).
4. Tax Information.
(a) Xxxxxx Trust shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that Xxxxxx Trust is required, in
certain instances, to deduct 31% with respect to interest paid on the New Notes
and proceeds from the sale, exchange, redemption or retirement of the New Notes
from holders of the New Notes who have not supplied their correct Taxpayer
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Identification Number or required certification. Such funds will be turned over
by Xxxxxx Trust to the Internal Revenue Service.
(b) Xxxxxx Trust shall notify the Company of the amount of any transfer
taxes payable in respect of the exchange of the Old Notes and, upon receipt of
written approval from the Company shall deliver or cause to be delivered, in a
timely manner, to each governmental authority to which any transfer taxes are
payable in respect of the exchange of the Old Notes, a check in the amount of
all transfer taxes so payable, and the Company shall reimburse Xxxxxx Trust for
the amount of any and all transfer taxes payable in respect of the exchange of
the Old Notes; provided, however, that Xxxxxx Trust shall reimburse the Company
for amounts refunded to it in respect of its payment of any such transfer taxes,
at such time as such refund is received by Xxxxxx Trust.
5. Governing Law.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
6. Notices.
Any communications or notice provided for hereunder shall be in writing and
shall be given (and shall be deemed to have been given upon receipt) by delivery
in person, telecopy, or overnight delivery or by registered or certified mail
(postage prepaid, return receipt requested) to the applicable party at the
addresses indicated below:
If to Xxxxxx Trust:
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Vice President
If to the Company:
Address
City, State, Zip Code
Telecopier No.: ( ) -
Attention: Name and Title
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or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. Parties in Interest.
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto and nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Without limitation to
the foregoing, the parties hereto expressly agree that no holder of the Old
Notes or the New Notes shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. Counterparts; Severability.
This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement. If any term or other provision
of this Agreement or the application thereof is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the agreements contained herein is not affected
in any manner adverse to any party. Upon such determination that any term or
provision or the application thereof is invalid, illegal or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the agreements contained herein may be performed
as originally contemplated to the fullest extent possible.
9. Headings.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. Entire Agreement.
This Agreement constitutes the entire understanding of the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended or
modified nor may any provision hereof be waived except in writing signed by each
party to be bound thereby.
11. Termination.
This Agreement shall terminate upon the earlier of (a) the 90th day
following the expiration, withdrawal, or termination of the Exchange Offer, (b)
the close of business on the date of actual receipt of written notice by Xxxxxx
Trust from the Company stating that this
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Agreement is terminated, (c) one year following the date of this Agreement, or
(d) the time and date on which this Agreement shall be terminated by mutual
consent of the parties hereto.
12. Miscellaneous.
Xxxxxx Trust hereby acknowledges receipt of the Prospectus and the Letter
of Transmittal and the Notice of Guaranteed Delivery and further acknowledges
that it has examined each of them. Any inconsistency between this Agreement, on
the one hand, and the Prospectus and the Letter of Transmittal and the Notice of
Guaranteed Delivery (as they may be amended or supplemented 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 Xxxxxx
Trust as Exchange Agent shall be controlled by this Agreement.
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Kindly indicate your willingness to act as Exchange Agent and Xxxxxx
Trust's acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Xxxxxx Trust's acceptance shall constitute
a binding agreement between Xxxxxx Trust and the Company.
Very truly yours,
Company Name
By: Name: ____________________
Title:_____________________
Accepted and Agreed to as of the date first written above:
XXXXXX TRUST AND SAVINGS BANK
By: Name:_______________________
Title:________________________
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