1
EXHIBIT 99(e)
___________, 199__
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
___________________________ (the "Company") proposes
to make an offer (the "Exchange Offer") to exchange its
___________________________ (the "Old Securities") for its
___________________________ (the "New Securities"). The terms and conditions
of the Exchange Offer as currently contemplated are set forth in a prospectus,
dated ___________, 199__ (the "Prospectus"), proposed to be distributed to all
record holders of the Old Securities. The Old Securities and the New
Securities are collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to
act as exchange agent (the "Exchange Agent") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the
Company on or about _____________, 199_. The Letter of Transmittal
accompanying the Prospectus (or in the case of book entry securities, the ATOP
system) is to be used by the holders of the Old Securities to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Old Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New
York City time, on _____________, 199__ or on such later date or time to which
the Company may extend the Exchange Offer (the "Expiration Date"). Subject to
the terms and conditions set forth in the Prospectus, the Company expressly
reserves the right to extend the Exchange Offer from time to time and may
extend the Exchange Offer by giving oral (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 Old 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 -- Certain Conditions to the Exchange Offer."] The
Company will give oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.]
2
2
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 an account with respect to
the Old 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 Old Securities by causing the Book-Entry Transfer Facility to transfer such
Old Securities 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 and certificates for Old 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 Old 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 Old Securities have otherwise been properly
tendered. In each case where the Letter of Transmittal or any other document
has been improperly completed or executed or any of the certificates for Old
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 necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President, Senior
Vice President, Executive Vice President, or any Vice President of the Company
(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 Securities pursuant to the
Exchange Offer.
5. Tenders of Old Securities may be made only as
set forth in the Letter of Transmittal and in the section of the Prospectus
captioned ["The Exchange Offer -- Procedures for Tendering Old Securities"],
and Old Securities 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 Securities which the President, Senior Vice President, Executive Vice
President, or any Vice President of the Company shall approve
3
3
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 Securities received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old 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
(c) from persons other than the registered holder
of Old Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Securities to the transfer agent for split-up and return
any untendered Old 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 confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Securities properly tendered and you, on behalf of
the Company, will exchange such Old Securities for New Securities and cause
such Old 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 Old
Securities tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Old Securities by the Company;
provided, however, that in all cases, Old Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other required documents. 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 upon the con-
4
4
ditions set forth in the Prospectus and the Letter of Trans mittal, Old
Securities tendered pursuant to the Exchange Offer may be withdrawn at any time
prior to the Expiration Date.
10. The Company shall not be required to exchange
any Old 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
Old Securities tendered shall be given (and 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 Old Securities 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, you shall as soon as practicable after
the expiration or termination of the Exchange Offer return those certificates
for unaccepted Old 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.
12. All certificates for reissued Old Securities,
unaccepted Old Securities or for New Securities shall be forwarded by (a)
first-class certified mail, return receipt requested under a blanket surety
bond protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each 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 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;
(b) 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 Old 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;
(c) 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;
5
5
(d) 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 you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
(e) 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
you shall in good faith believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on and shall be protected
in acting upon written or oral instructions from any officer of the Company;
(g) may consult with your counsel 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 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
(h) shall not advise any person
tendering Old 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 Old Securities.
15. You shall take such action as may from time
to time be requested by the Company or its counsel (and such other action as
you may reasonably deem appropriate) to furnish copies of the Prospectus,
Letter of Transmittal and the Notice of Guaranteed Delivery (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 at your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention:_____________.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to ___________________ of
the Company and such other person or persons as it may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date, as to the number
of Old 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 and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company
6
6
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 it or he or she
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person 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 Old
Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Company.
17. Letters of Transmittal and Notices of
Guaranteed Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
18. 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 reasons of
amounts, if any, borrowed by the Company, or any of its subsidiaries or
affiliates pursuant to any loan or credit agreement with you or for
compensation owed to you hereunder.
19. For services rendered as Exchange Agent
hereunder, you shall be entitled to such compensation as set forth on Schedule
I attached hereto.
20. You hereby acknowledge receipt of the
Prospectus and the Letter of Transmittal and further acknowledge that you have
examined each of them. 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.
21. The Company covenants and agrees to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
loss, liability, cost or expense, including attorneys' fees and expenses,
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 reasonably
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Old Securities 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 Securities; provided, however, that the
Company
7
7
shall not be liable for indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of your gross negligence or willful
misconduct. In no case shall the Company be liable under this indemnity with
respect to any claim against you unless the Company shall be notified by you,
by letter or 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 notice of
commencement of action. 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 satisfactory to you to defend such suit.
22. You 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 you are
required to deduct 31% on payments to holders who have not supplied their
correct Taxpayer Identification Number or required certification. Such funds
will be turned over to the Internal Revenue Service in accordance with
applicable regulations.
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 Old Securities, your check in the
amount of all transfer taxes so payable, and the Company shall reimburse you
for the amount of any and all transfer taxes payable in respect of the exchange
of Old Securities; 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.
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
taken 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
8
8
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:
9
9
If to the Company:
---------------------------
---------------------------
---------------------------
Facsimile:
------------------
Attention:
------------------
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto,
this Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Paragraphs 19, 21 and 23 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.
30. This Agreement shall be binding and effective as
of the date hereof.
10
10
Please acknowledge receipt of this Agreement and confirm
the arrangements herein provided by signing and returning the enclosed copy.
CORPORATION
---------------
By:
------------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
------------------------------
Name:
Title:
11
SCHEDULE I
FEES
