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Exhibit 10.29
PCS&F DRAFT: 5/20/98
June __, 1998
EXCHANGE AGENT AGREEMENT
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Young America Corporation, a Minnesota corporation ("the Company"), and
Young America Holdings, Inc., a Minnesota corporation ("Holdings"), propose to
make an offer (the "Exchange Offer") to exchange the Company's registered
11-5/8% Senior Subordinated Notes Due 2006 (the "New Notes") for its outstanding
11-5/8% Senior Subordinated Notes Due 2006 (the "Old Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated June __, 1998 (the "Prospectus"), proposed to be distributed
to all record holders of the Old Notes. The Old Notes and the New Notes are
collectively referred to herein as the "Notes" or the "Securities."
The Company hereby appoints Marine Midland Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Marine Midland Bank.
The Exchange Offer is expected to be commenced by the Company on or
about June __, 1998. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of Old Notes tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
July __, 1998 or on such later date or time to which the Company and Holdings
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company and Holdings, expressly
reserve 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 at any time before 9:00 a.m., New York City time, on the business day
following the
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previously scheduled Expiration Date, and in such case the term "Expiration
Date" shall mean the time and date on which such Exchange Offer as so extended
shall expire.
The Company and Holdings expressly reserve the right to delay, amend or
terminate the Exchange Offer, and not to accept for exchange any Old Notes not
theretofore accepted for exchange, in among other cases upon the occurrence of
any of the conditions of the Exchange Offer specified in the Prospectus under
the captions "The Exchange Offer -- Expiration Date; Extensions; Amendments", "
- Conditions" and "-- Terms of the Exchange Offer." The Company and Holdings
will give to you as promptly as practicable oral (confirmed in writing) or
written notice of any delay, amendment, termination or nonacceptance.
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 or in the section of the Prospectus captioned the
"The Exchange Offer" and such duties which are necessarily incidental thereto.
2. You will establish an account with respect to the Old Notes 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 Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and Old Notes
(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 Notes to ascertain whether: (i) the Letters of Transmittal
and any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and in the Prospectus and (ii)
the Old Notes have otherwise been properly tendered. In each case where the
Letter of Transmittal or any other document has been improperly completed or
executed or any of the Old Notes are not in proper form for transfer or some
other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, the Chief Executive
Officer, the President, or any Vice President of the Company (such approval, if
given orally, promptly to be confirmed in writing) or any other party designated
by such officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
-- Procedures for Tendering"
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and Old Notes shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes
which the Chairman of the Board, the Chief Executive Officer, the President or
any Vice President of the Company or any other party designated by any such
officer in writing shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, promptly
shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
(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 Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so
indicated and as permitted in the Letter of Transmittal and deliver the Old
Notes to the transfer agent for split-up and return any untendered Old Notes 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, promptly to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the Old Notes
tendered promptly after notice (such notice if given orally, promptly to be
confirmed in writing) of acceptance of said Old Notes by the Company; provided,
however, that in all cases, Old Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such Old
Notes (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 or an Agent's Message in lieu thereof) with
any required signature guarantees and any other required document. You shall
issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
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9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Notes tendered
shall be given (such notices if given orally, promptly shall be 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 Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the
captions "The Exchange Offer -- Terms of the Exchange," "-- Expiration Date;
Extensions; Amendments" or "Conditions" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Old Notes (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 reissued Old Notes, unaccepted Old Notes or New Notes shall be
forwarded by (a) first-class mail, postage pre-paid 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 persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the Old Notes 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;
(b) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company or Holdings for any
action taken or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your part, by reason of
or as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in
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good faith in reliance upon any certificate, instrument, opinion, notice,
letter, facsimile or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper party or
parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions (confirmed in writing) from any officer of the
Company or Holdings with respect to the Exchange Offer;
(f) shall not advise any person tendering Old Notes pursuant
to the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Notes;
(g) may consult with counsel and the written advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in reliance thereon.
15. You shall send to all holders of Old Notes a copy of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
used in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company to commence the Exchange
Offer and take such other 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 Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of Old
Notes and 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: President, at
the Company's offices at 000 Xxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxx 00000;
telephone (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the President of the Company, and such
other person or persons as the Company may request in writing, not later than
7:00 p.m., New York City time, each business day, and more frequently if
reasonably requested, up to and including the Expiration Date, as to the number
of Old Notes which have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons as the Company requests in
writing from time to time prior to the Expiration Date of such other
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information as it 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 Notes tendered and the aggregate principal amount of Old Notes 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
customarily preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus materials in
accordance with your customary procedures.
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 and reimbursement of out-of-pocket expenses as set
forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the Prospectus, the
Letter of Transmittal and such other forms, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
21. The Company and Holdings, jointly and severally, agree to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys' fees and expenses,
arising out of or in connection with your appointment as Exchange Agent and the
performance of your duties hereunder, including, without limitation, any act,
omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Notes reasonably believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Notes; provided, however, that neither the Company nor Holdings
shall be liable for indemnification or otherwise for any loss, liability, cost
or expense to the extent arising out of your negligence, willful misconduct or
bad faith. The Company's and Holdings' obligations under this paragraph 21 shall
survive the termination of this Agreement and the discharge of your
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obligation hereunder and any other termination of this Agreement under any
federal or state bankruptcy law.
22. 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 Notes 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 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 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.
24. 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.
25. 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.
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.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, as its address or telecopy
number set forth below:
If to the Company or Holdings:
Young America Corporation
000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (612) _________
Attention: President
If to the Exchange Agent:
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Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Operations
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19, 21 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Old Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
YOUNG AMERICA CORPORATION
By:________________________________
Name:
Title:
YOUNG AMERICA HOLDINGS, INC.
By:________________________________
Name:
Title:
Accepted as the date first above written:
MARINE MIDLAND BANK
By:_________________________
Name:
Title:
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YOUNG AMERICA CORPORATION
YOUNG AMERICA HOLDINGS, INC.
Exchange Agency
Fee Schedule
Flat Fee........................................................ $ 5,000.00
Out-Of-Pocket Expenses
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses, facsimile, stationery, postage,
telephone, overnight courier and messenger costs, all of which shall be paid by
the Company or Holdings.
