Exhibit 4.6
August __, 2001
EXCHANGE AGENT AGREEMENT
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Xxxxx Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Ladies and Gentlemen:
Applied Extrusion Technologies, Inc., a Delaware corporation (the
"Company") is making an offer (the "Exchange Offer") to exchange all of its
outstanding 10 3/4% Senior Notes due 2011 (the "Outstanding Securities") for its
10 3/4% Series B Senior Notes due 2011 (the "New Securities"), which have been
registered under the Securities Act of 1933, as amended. The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated _________, 2001 (the "Prospectus") and related Letter of
Transmittal, to be distributed to all record holders of the Outstanding
Securities, as they may be supplemented or amended from time to time. The
Outstanding Securities and the New Securities are collectively referred to
herein as the "Securities."
The Company hereby appoints Xxxxx Fargo Bank Minnesota, National
Association to act as exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. References hereinafter to "you" shall refer to Xxxxx Fargo
Bank Minnesota, National Association.
The Exchange Offer was commenced by the Company on ________, 2001. The
Letter of Transmittal accompanying the Prospectus (or in the case of book-entry
securities, the Automated Tender Offer Program ("ATOP") of the Book-Entry
Transfer Facility (as defined below)) is to be used by the holders of the
Outstanding Securities to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Outstanding Securities tendered
in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
________, 2001 or on such subsequent 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 before
9:00 a.m., New York City time, on the business day following 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 Outstanding Securities not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The Exchange Offer
- Termination." The Company will give oral (promptly 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" or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the Outstanding
Securities 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, and any financial institution that is a participant in the Book-
Entry Transfer Facility's systems may make book-entry delivery of the
Outstanding Securities by causing the Book-Entry Transfer Facility to transfer
such Outstanding Securities into your account in accordance with the Book-Entry
Transfer facility's procedure for such transfer. The account shall be
maintained until the Outstanding Securities tendered pursuant to the Exchange
Offer shall have either been accepted for exchange or returned.
3. You are to examine each of the Letters of Transmittal and certificates
for Outstanding Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Outstanding Securities 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 Outstanding Securities have otherwise been properly
tendered. The Company shall have the absolute right to (i) reject any and all
Outstanding Securities not properly tendered, (ii) determine whether any tender
of Outstanding Securities is valid, and (iii) reject any Outstanding Securities
the Company's acceptance of which would, in the opinion of counsel for the
Company, be unlawful; it being understood that you shall have neither discretion
nor responsibility with respect to such matters. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Outstanding Securities 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
reasonably necessary or advisable to cause such irregularity to be corrected.
4. With the approval of a designated authorized officer of the Company or
Xxxxxxxx X. Xxxxx of Ropes & Xxxx, special counsel to the Company ("Ropes")
(such approval, if given orally, to be promptly confirmed in writing) or any
other party designated in writing by an officer of the Company, you are
authorized to waive any irregularities in connection with any tender of
Outstanding Securities pursuant to the Exchange Offer.
5. Tenders of Outstanding Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer--Procedure for Tendering," and Outstanding Securities shall be
considered properly tendered to you only when:
(a) certificates for Outstanding Securities (whether physically
delivered or delivered pursuant to the procedures for book-entry transfer set
forth in the section entitled "The Exchange Offer--Procedure for Tendering" of
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the Prospectus, in which latter case, confirmation of receipt of such tendered
Outstanding Securities must be received by you) are covered by a properly
completed and duly executed Letter of Transmittal, or properly transmitted
Agent's Message, received by you (together with any other required documents)
prior to the Expiration Date, or by an appropriate Notice of Guaranteed Delivery
relating to the Exchange Offer from an Eligible Institution, as defined in the
Securities Exchange Act of 1934, as amended, received by you in accordance with
the Exchange Offer prior to the Expiration Date;
(b) certificates for Outstanding Securities (together with any other
required documents) are received by you, or you have received confirmation of
receipt of such Outstanding Securities pursuant to the book-entry transfer
procedures set forth in the Prospectus, prior to the Expiration Date or, in the
case of an appropriate Notice of Guaranteed Delivery, along with a properly
completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), or a properly transmitted Agent's Message, and any other
documents required by the Letter of Transmittal, within five New York Stock
Exchange, Inc. trading days after the date of such Notice of Guaranteed
Delivery; and
(c) the adequacy of the items relating to certificates for Outstanding
Securities and the related Letter of Transmittal, or Agent's Message, have been
favorably passed upon as above provided.
A tender made on the basis of an appropriate Notice of Guaranteed Delivery
will not be considered to have been properly made unless certificates for all of
the Outstanding Securities covered thereby have been deposited (either
physically or pursuant to book-entry transfer) within the time periods provided
in this Section 5 and the section entitled "The Exchange Offer--Guaranteed
Delivery Procedure" of the Prospectus; and when all such certificates have been
so delivered and all other requirements in this Section 5 and the Exchange Offer
have been complied with, the tender will be deemed effected at the time of
receipt by you of the appropriate Notice of Guaranteed Delivery provided for in
such section of the Prospectus and this Section 5.
Notwithstanding the provisions of this Section 5, Outstanding Securities
which the Chairman of the Board or any Vice President of the Company shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be promptly confirmed in
writing).
6. You shall advise the Company with respect to any Outstanding Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Outstanding Securities.
7. You shall accept tenders:
(a) in cases where the Outstanding Securities 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 so to act is submitted; and
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(c) from persons other than the registered holder of Outstanding
Securities, provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Outstanding Securities to the registrar for split-up and return any
untendered Outstanding Securities 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.
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 its acceptance, promptly after the Expiration Date, of
all Outstanding Securities properly tendered and you, on behalf of the Company,
will exchange such Outstanding Securities for New Securities and cause such
Outstanding Securities to be cancelled. Delivery of New Securities will be made
on behalf of the Company by you at the rate of $1,000 principal amount of New
Securities for each $1,000 principal amount of the corresponding series of
Outstanding Securities tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Outstanding
Securities by the Company; provided, however, that in all cases, Outstanding
Securities tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Outstanding Securities (or timely
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
manually signed facsimile thereof) with any required signature guarantees and
any other required documents, or a properly transmitted Agent's Message. You
shall issue New Securities 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 conditions set forth in the Prospectus and the Letter
of Transmittal, Outstanding Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date, as provided in the
Prospectus under the caption "The Exchange Offer--Withdrawal of Tenders."
10. The Company shall not be required to exchange any Outstanding
Securities 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 Outstanding
Securities tendered shall be given (if given orally, to be promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Outstanding Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Termination" or otherwise, you
shall, as soon as practicable after the expiration or termination of the
Exchange Offer, return those certificates for unaccepted Outstanding Securities
(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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12. All certificates for reissued Outstanding Securities, unaccepted
Outstanding Securities or for New Securities shall be forwarded by (i) first-
class mail return receipt requested and insured against loss or liability
arising out of the non-receipt or non-delivery of such certificates or (ii)
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) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any third
party for special, indirect or consequential damages, or lost profits, arising
in connection with this Agreement.
(b) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing between you and
the Company;
(c) 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 Outstanding Securities represented thereby deposited
with you 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;
(d) shall not be obligated to take any legal action hereunder which
might, in your judgment, involve any expense or liability, unless you shall have
been furnished with indemnity reasonably satisfactory to you;
(e) may conclusively 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 believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document, agreement,
certificate 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 in good faith
believe to be genuine or to have been signed or presented by the proper person
or persons;
(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection 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
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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; and
(i) shall not advise any person tendering Outstanding Securities
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 Outstanding
Securities.
15. You shall take such action as may from time to time be requested by the
Company (and such other action as you may deem appropriate) to furnish copies of
the Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery (as
defined in the Prospectus) 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 on your request. All other requests for information
relating to the Exchange Offer shall be directed to the General Counsel and
Secretary of the Company, Xxxx X. Xxxxx, at (000) 000-0000.
16. You are authorized to cooperate with and to furnish information to any
organization (and its representatives) designated from time to time by the
Company or Ropes in any manner reasonably requested by it in connection with the
Exchange Offer and any tenders thereunder.
17. You shall advise by facsimile transmission Xxxx X. Xxxxx, General
Counsel and Secretary of the Company, at the facsimile number (000) 000-0000,
Xxxxxxxx X. Xxxxx, counsel to the Company, at the facsimile number (617) 951-
7050 and such other person or persons as the Company may request, daily (and
more frequently during the week immediately preceding the Expiration Date if
requested) up to and including the Expiration Date, as to the number of
Outstanding Securities 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, items improperly
received and items covered by Notices of Guaranteed Delivery. In addition, you
will also inform, and cooperate in making available to, the Company or any such
other person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as they may reasonably request. Such
cooperation shall include, without limitation, the granting by you to the
Company and such persons as the Company 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 Company 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 Outstanding Securities tendered, the
aggregate principal amount of Outstanding Securities accepted and deliver said
list to the Company.
18. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange Offer,
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.
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19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. 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 your duties, liabilities and indemnification
as Exchange Agent.
21. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, incurred without gross negligence or willful
misconduct on your part, arising out of or in connection with any act, omission,
delay or refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document believed by you in good faith to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Outstanding Securities
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 Outstanding
Securities. In each case, the Company shall be notified by you, by letter or
facsimile transmission, 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 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 shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such
suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you, so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit, and so long
as you have not determined, upon written advice of your counsel, that a conflict
of interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
22. You shall arrange to comply with the 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 as may be necessary in your capacity as Exchange Agent.
23. You 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 Outstanding Securities, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. 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.
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25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
26. 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.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled 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.
28. 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 telecopy number set forth below:
If to the Company:
Applied Extrusion Technologies, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
with copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
Xxxxx Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Services
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 19 and 21 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
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30. This Agreement shall be binding and effective as of the date hereof.
[Remainder of the page intentionally left blank.]
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
APPLIED EXTRUSION
TECHNOLOGIES, INC.
By:_________________________
Name: Xxxx X. Xxxxx
Title: General Counsel & Secretary
Accepted as of the date first above
written:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Exchange Agent
By:_________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
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