FORM OF EXCHANGE AGENT AGREEMENT
Exhibit 99.3
FORM OF
EXCHANGE AGENT AGREEMENT
U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx,
0xx
Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Exchange Agency Agreement dated as
of ,
2008.
Ladies and Gentlemen:
Nortek, Inc., a Delaware corporation, (the
“Company”) intends to make an offer (the
“Exchange Offer”) to exchange up to
$750,000,000 aggregate principal amount of its 10% Senior
Secured Notes due 2013 issued by the Company and guaranteed by
the Guarantors (the “New Notes”), which
have been registered under the Securities Act of 1933, as
amended (the “Securities Act”), pursuant
to a Registration Statement of which the Prospectus (as defined
below) is a part, for a like principal amount of outstanding
10% Senior Secured Notes due 2013 (the
“Existing Notes”) issued by the Company
and guaranteed by the Guarantors in transactions exempt from or
not subject to registration under the Securities Act. The terms
and conditions of the Exchange Offer as currently contemplated
are set forth in a prospectus,
dated ,
2008 (the “Prospectus”), proposed to be
distributed to all holders of the Existing Notes. The Existing
Notes and the New Notes are collectively referred to herein as
the “Notes.” Capitalized terms used but not
defined herein shall have the meaning ascribed to such terms in
the Indenture, dated as of May 20, 2008, among the Company,
the Guarantors and U.S. Bank National Association, as
Trustee and Collateral Agent (“USB”).
The Company hereby appoints USB to act as exchange agent (the
“Exchange Agent”) in connection with the
Exchange Offer. References hereinafter to “you” shall
refer to USB.
The Exchange Offer is expected to be commenced by the Company on
or about the date of the Prospectus. The Letter of Transmittal
accompanying the Prospectus is to be used by the holders of the
Existing Notes to accept the Exchange Offer, and contains
instructions with respect to the delivery of certificates
representing the Existing Notes tendered.
In the event any holder of the Existing Notes is tendering by
book-entry transfer to the Exchange Agent’s account at The
Depository Trust Company (“DTC”), such
holders may tender through the DTC Automated Tender Offer
Program (“ATOP”). DTC participants will
transmit their acceptance of the Exchange Offer to DTC, which
will verify the acceptance and execute a book-entry delivery to
your account at DTC. DTC will then send an “Agent’s
Message” to you for its acceptance.
The Exchange Offer shall expire at 5:00 p.m., New York City
time,
on ,
2008 or on such later date or time to which the Company may
extend the Exchange Offer (the “Expiration
Date”), written notice of such extension shall be
given to you by the Company. The Company shall give written
notice to you of the effective date of the Registration
Statement promptly after the Registration Statement becomes
effective, and until your receipt of such written notice you
shall be entitled to assume in good faith that such effective
date has not occurred. 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 written notice to you of
such on or before 5:00 p.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
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 herein (each of which is ministerial and
shall not be construed as fiduciary, and further, no implied
duties shall be construed or read into this Agreement against
you).
2. Subject to applicable ATOP procedures, you are to
examine each Letter of Transmittal that you receive and each
original Existing Note that you receive (and any other documents
that you may receive from holders of the Existing Notes) to
ascertain whether: (i) such Letters of Transmittal (and any
such other documents) are duly executed and properly
completed in accordance with the instructions set forth in the
Letter of Transmittal, and (ii) such Existing Notes have
otherwise been properly tendered. In each case where any such
Letter of Transmittal (or other such document) received by you
has been improperly completed or executed, or any such Existing
Note received by you is not in proper form for transfer, or some
other irregularity in connection with the acceptance of the
Exchange Offer is apparent on the face of any such Letter of
Transmittal or Existing Note (or any such other document)
received by you, 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, and you will promptly notify the
Company thereof. With respect to any Letters of Transmittal and
Existing Notes tendered through the ATOP (or applicable
guaranteed delivery procedure) you shall be entitled to rely
conclusively on information or confirmations you receive from
DTC (or other applicable institution, as the case may be) with
respect thereto.
3. With the approval of any of the Chairman, the Chief
Executive Officer, the President, any Vice President and the
Secretary (each, a “Designated Officer”)
of the Company, or of counsel to the Company (such approval, if
given orally, to be confirmed in writing) or any other party
designated by such a Designated Officer, you are authorized to
waive any irregularities in connection with any tender of
Existing Notes pursuant to the Exchange Offer, and shall have no
liability therefor.
4. Tenders of Existing 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 Exchange
Procedures — Procedures for
Tendering”, and Existing Notes shall be considered
properly tendered to you only when tendered in accordance with
the procedures set forth therein.
Notwithstanding the provisions of this paragraph 4,
Existing Notes that a Designated Officer, counsel to the
Company, or any other party designated by such Designated
Officer shall approve as having been properly tendered shall be
considered by you, without incurring any liability, to be
properly tendered.
5. You shall advise the Company with respect to any
Existing Notes received subsequent to the Expiration Date and
accept its instructions with respect to disposition of such
Existing Notes.
6. Subject to applicable ATOP procedures, you shall accept
tenders:
(a) in cases where the Existing Notes received by you are
registered in two or more names, only if signed by all named
holders;
(b) in cases where the signing person indicated on a Letter
of Transmittal received by you is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) in cases where tender of an Existing Note received by
you is made by a person other than the registered holder of such
Existing Note, if customary transfer requirements have been
satisfied.
You shall accept partial tenders of Existing Notes where so
indicated and as permitted in the Letter of Transmittal and, in
your capacity as transfer agent,
split-up and
return any untendered principal amount of the Existing Notes to
the holder (or such other person as may be designated in the
Letter of Transmittal), as promptly as practicable after the
expiration or termination of the Exchange Offer.
7. The Company will exchange Existing Notes duly tendered
for New Notes on the terms and subject to the conditions set
forth in the Prospectus and the Letter of Transmittal. Delivery
of Existing Notes will be made on behalf of the Company at the
rate of $1,000.00 of principal amount of New Notes for each
$1,000.00 of principal amount of Existing Notes tendered as soon
as practicable after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said principal amount of
Existing Notes by the Company; provided, however, that in all
cases, Existing Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely tender to you of the related
Existing Note representing such principal amount, and a properly
completed and duly executed Letter of Transmittal, in each case
in accordance with and subject to the Prospectus and the terms
of the Letter of Transmittal.
8. Tenders of Existing Notes pursuant to the Exchange Offer
may be withdrawn prior to the Expiration Date are subject to the
terms and upon the conditions set forth in the Prospectus and
the Letter of Transmittal.
9. The Company shall not be required to exchange any
Existing 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 Existing Notes tendered shall be
given (and confirmed in writing) by the Company to you.
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10. If, pursuant to the Exchange Offer, the Company does
not accept for exchange all or part of the Existing 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 the Expiration Date (and receipt of
notification from the Company of such non-acceptance) return any
certificates in your possession representing (or, if applicable,
effect appropriate book-entry transfer) unaccepted Existing
Notes, together with any accompanying Letters of Transmittal
(and related documents delivered to you pursuant to the Letter
of Transmittal) that are in your possession, to the persons who
deposited them.
11. All certificates in your possession representing
returned Existing Notes, unaccepted Existing Notes or New Notes
shall be forwarded by first-class certified mail, return receipt
requested, if in the U.S., or by two day courier, if outside the
U.S.
12. If any holder shall report to you that
his/her
failure to surrender Existing Notes registered in
his/her name
is due to the loss, misplacement or destruction of a certificate
or certificates, you shall request such holder (i) to
furnish to the Exchange Agent an affidavit of loss and, if
required by the Company or the Guarantors, a corporate bond of
indemnity in an amount and evidenced by such certificate or
certificates of a surety, as may be satisfactory to the Company
or the Guarantors, and (ii) to execute and deliver an
agreement to indemnify the Company, the Guarantors and you in
such form as is acceptable to the Company, the Guarantors and
you. The obligees to be named in each such indemnity bond shall
include the Company, the Guarantors and you. You shall report in
writing to the Company the names of all holders who claim that
their Existing Notes have been lost, misplaced or destroyed and
the principal amount of such Existing Notes.
13. As Exchange Agent hereunder:
(a) you shall have no duties or obligations other than
those specifically set forth herein or as may be subsequently
agreed to in writing by you and the Company (provided that the
foregoing shall not be construed to discharge your general duty
to act in good faith);
(b) you will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Existing Notes represented
thereby deposited with you pursuant to the Exchange Offer;
(c) you shall not be obligated to expend or risk your own
funds, or to take any legal or other action hereunder which
might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with indemnity
satisfactory to you;
(d) you may rely on, and shall be protected in acting (or
in forbearing from action) in reliance upon, any certificate,
statement, request, agreement, instrument, opinion, notice,
letter, telegram or other document, security or communication
received by you and reasonably believed by you to be genuine and
(if applicable) to have been signed by the proper party or
parties;
(e) you may rely on and shall be protected in acting upon
written or oral instructions from any Designated Officer or
counsel to the Company, or any other party designated by a
Designated Officer of the Company;
(f) you may consult with your counsel (including in-house
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 to be taken by
you hereunder in good faith and in accordance with the written
opinion of such counsel;
(g) you shall not advise any person tendering Existing
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 Existing Notes;
(h) you shall not be deemed to have notice of any fact,
claim or demand with respect hereto unless actually known by an
officer in your Corporate Trust Office charged with
responsibility for administering this Agreement or unless in
writing received by you and making specific reference to this
Agreement or the Exchange Offer;
(i) you shall not be under any responsibility for the
validity, genuineness or due authorization or execution of, or
with respect to any signatures appearing on, any Letter of
Transmittal (or with respect to the truth or accuracy of any
information therein contained), any certificate representing the
Notes or any book-entry transfer of the Notes; and
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(j) neither you nor any of your directors, officers or
employees shall be liable to anyone for any error of judgment,
or for any act done or step taken or omitted to be taken by you
or any of your directors, officers or employees, or for any
mistake of fact or law, or for anything which you or any of your
directors, officers or employees, may do or refrain from doing
in connection with or in the administration of this Agreement,
unless and except to the extent the same constitutes gross
negligence, willful misconduct or bad faith on your part.
14. You shall take such action as may from time to time be
requested by the Company (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.
15. You shall advise by facsimile transmission, electronic
mail or telephone (and, in the case of advice by telephone,
promptly thereafter confirm in writing) to the following
designated person (or such other person as such person may
subsequently designate by written notice to you) at the Company,
upon such person’s written request from time to time made
not more frequently than once per business day (as defined
below), as to the total principal amount of Existing Notes that
have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement as of the close of
business or the immediately preceding business day, separately
reporting and giving cumulative totals as to items properly
received and items improperly received:
c/o Nortek,
Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxx-xxx.xxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxx-xxx.xxx
For purposes of this Agreement, the term “business
day” shall mean any day on which the Exchange Agent is open
for business at its offices in St. Xxxx, Minnesota or its office
in Boston, Massachusetts. In addition, you will also inform, and
cooperate in making available to, such person at the Company
(upon oral request reasonably made from time to time prior to
the Expiration Date) such other information in your possession
regarding the items received by you in connection with the
Exchange Offer as he or she reasonably requests. After the
Expiration Date, you shall prepare a final list of all persons
whose tenders were accepted, the aggregate principal amount of
Existing Notes tendered, the aggregate principal amount of
Existing Notes accepted and deliver said list to the Company.
16. Any Letters of Transmittal and Notices of Guaranteed
Delivery actually received by you shall be stamped by you as to
the date and the time of your receipt thereof and shall be
preserved by you for a period of time at least equal to (without
any obligation on your part to preserve longer than) 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 in your possession by returning them
to the Company.
17. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes by
reason of amounts, if any, borrowed by the Company, or any of
its subsidiaries or affiliates pursuant to any loan or credit
agreement with your or for compensation owed to you hereunder.
18. For services rendered as Exchange Agent hereunder, you
shall be entitled to compensation as set forth on
Schedule I attached hereto, and shall be entitled to
reimbursement for out-of-pocket disbursements and expenses
(including the fees of your counsel) incurred in connection with
the preparation of this Agreement and your performance and
observance of, or pursuant to, the terms of this Agreement, each
of which the Company agrees to pay (as billed by you).
19. The Company hereby represents and warrants that it has
provided to you a complete, accurate and final copy of the
Prospectus and the Letter of Transmittal; and you hereby
acknowledge receipt of the copies of the foregoing that have
been provided to you by the Company (or its counsel) and further
acknowledge that you have examined each of them.
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Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as each has been
provided to you), on the other hand, with respect to the terms
and conditions of the Exchange Offer shall be resolved in favor
of the latter two documents (except with respect to the duties,
immunities, liabilities, protections and indemnification of, or
in favor of, you as Exchange Agent, which shall be resolved and
controlled exclusively by this Agreement).
20. The Company covenants and agrees to indemnify and hold
you in your capacity as Exchange Agent hereunder (and your
directors, officers and employees) harmless against any loss,
liability, cost and expense, including (but not limited to)
reasonable attorneys’ fees and expenses, that may be
suffered or incurred by you and arising out of or in connection
with your appointment as Exchange Agent hereunder, or your
performance or observance of this Agreement, or pursuant to the
terms of this Agreement, including without limitation any loss,
liability cost or expense arising from 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 Existing 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 Existing Notes; provided, however, that
the Company shall not be liable for indemnification for any
loss, liability, cost or expense to the extent arising out of
your gross negligence, willful misconduct or bad faith. The
foregoing indemnity and agreement to hold harmless shall survive
the termination of this Agreement.
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 nevertheless remain liable to you for the fees and
expenses of any separate counsel retained by you, if in your
judgment, which must be reasonable and made in good faith, it is
advisable for you to be represented or advised by separate
counsel.
The Company hereby agrees to indemnify and hold you harmless
from any liability on account of taxes, assessments for late
payment or other governmental charges or any other loss, costs
or expenses (including reasonable legal fees and expenses) that
may be assessed against you as a result of your duties
hereunder, including without limitation any liability for the
withholding or deduction or the failure to withhold or deduct
taxes, and any liability for failure to obtain proper
certifications or to properly report to governmental
authorities. The foregoing indemnity shall survive the
termination of this Agreement.
21. The Company hereby agrees to assume any and all
obligations imposed now or hereafter by any applicable tax law
with respect to your duties hereunder (other than income tax
obligations in respect of income earned by you). The Company
understands that you are required to deduct 30% on payments made
to U.S. persons on account of New Notes issued pursuant to
the Exchange Offer who have not supplied the correct taxpayer
identification number or required certification, and hereby
undertakes to instruct you in writing with respect to any other
responsibility you may have for withholding and other taxes,
assessments or other governmental charges, certifications and
governmental reporting in connection with your duties under this
Agreement.
22. The Company shall reimburse you for the amount of any
and all transfer taxes payable in respect of the exchange of
Existing Notes; 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.
23. 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, without regard to conflict of law
principles thereof.
24. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
25. In case any provisions 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.
26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged. This Agreement may
not be modified orally.
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27. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including telecopy 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:
c/o Nortek,
Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxx-xxx.xxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxx-xxx.xxx
If to the Exchange Agent:
U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. XxXxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. XxXxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate five (5) days following the
Expiration Date. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates, funds or
property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the
date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangement herein provided by signing and returning the
enclosed copy.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed and delivered on its behalf by a duly
authorized officer, intending the same to be effective as of
the day
of ,
2008.
NORTEK, INC.
By: |
|
Name:
Title: |
Accepted as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION, as Exchange Agent
By:
Name:
Title: |
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Schedule I
U.S. BANK
NATIONAL ASSOCIATION
Schedule of
Fees
to
Provide Exchange Agent Services
For
Nortek, Inc.
For
Nortek, Inc.
144A and Reg. S EXCHANGE FEE: $2,500.00
LEGAL FEES: At cost.
EXTRAORDINARY ADMINISTRATIVE EXPENSES
Fees for services not specifically set forth in this schedule
will be determined by appraisal. Such services may include, but
not be limited to, additional responsibilities and services
incurred in connection with solicitation of consents to amend
the governing documents, unusual cash
and/or
investment transactions, calculations, reports or notices,
tender/exchange offers for the securities, or in case of early
termination, litigation, restructuring or default.
OUT-OF-POCKET EXPENSES
Any out-of-pocket expenses incurred by us will be billed at
cost. These items will include, but not be limited to, legal
costs, travel expenses, document duplication and facsimiles,
courier services, etc.
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