Exhibit 99.1
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of __________________, 1999 between IBJ
Whitehall Bank & Trust Company, a banking corporation organized under the laws
of the State of New York, as Exchange Agent (the "Agent")_____________________ a
corporation organized under the laws of the State of
_______________________________ (the "Company").
The Company proposes to exchange $1,000 principal amount of the Company's _____%
__________ [Notes] due ___, Series B (the "New Notes" or "Exchange Notes") in
exchange (the "Exchange Offer") for an equal aggregate principal amount of the
Company's outstanding _______%______[Notes]due_____, Series A (the "Old Notes")
pursuant to the_________________________ [Agreement] dated as of 1999 and the
accompanying Letter of Transmittal. The Exchange Offer will terminate at 5:00
p.m. New York City Time on , unless extended by the Company in its sole
discretion (the "Expiration Date"). The New Notes are to be issued by the
Company pursuant to the terms of an Indenture dated as of __________________,
1999 (the "Indenture") between the Company and IBJ Whitehall Bank & Trust
Company, as trustee (the "Trustee").
Subject to the provisions hereof, the Company hereby appoints and the Agent
hereby accepts the appointment as Agent for the purposes of receiving, accepting
for delivery and otherwise acting upon tenders of the Old Notes (the
"Certificates") in accordance with the form of Letter of Transmittal attached
hereto (the "L/T") and with the the terms and conditions set forth herein and
under the caption "The Exchange Offer" in the Prospectus.
The Agent has received the following documents in connection with its
appointment:
(1) L/T
(2) a form of Notice of Guaranteed Delivery
(3) the Prospectus
(4)
The Agent is authorized and hereby agrees to act as follows:
(a) to address, and deliver by hand or next day courier, a
complete set of the Exchange Offer Documents to each person
who, prior to the Expiration Date, becomes a registered holder
of Old Notes promptly after such person becomes a registered
holder of Old Notes;
(b) to receive all tenders of Old Notes made pursuant to the
Exchange Offer and stamp the L/T with the day, month and
approximate time of receipt;
(c) to examine each L/T and Old Notes received to determine that
all requirements necessary to constitute a valid tender have
been met. The Agent shall be entitled to rely on the
electronic messages sent by the Depository Trust Company
("DTC") regarding ATOP delivery of the Notes to the Agent's
account at DTC from the DTC participants listed on the DTC
position listing provided to the Agent;
(d) to take such actions necessary and appropriate to correct any
irregularity or deficiency associated with any tender not in
proper order;
(e) to follow instructions given by______________________________
of the Company, with respect to the waiver of any
irregularities or deficiencies associated with any tender;
(f) to hold all valid tenders subject to further instructions from
_______________________ of the Company;
(g) to render a written report, in the form of Exhibit A attached
hereto, on each business day during the Exchange Offer and
promptly confirm, by telephone, the information contained
therein to _____________ at ____________.
(h) to follow and act upon any written amendments, modifications
or supplements to these instructions (provided such
amendments, or supplements are acceptable to the Agent), any
of which may be given to the Agent by the President, any Vice
President or the Secretary of the Company or such other person
or persons as they shall designate in writing;
(i) to return to the presentors, in accordance with the provisions
of the L/T, any Old Notes that were not received in proper
order and as to which the irregularities or deficiencies were
not cured or waived;
(j) in the event the Exchange Offer is consummated, to deliver
authenticated Exchange Notes to tendering Noteholders, in
accordance with the instructions of such Noteholders specified
in the respective L/T's, as soon as practicable after receipt
thereof;
(k) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other
requirements are fulfilled in connection with any request for
issuance of the Exchange Notes in a name other than that of
the registered owner of the Old Notes;
(l) to deliver to, or upon the order of, the Company all Old Notes
received under the Exchange Offer, together with any related
assignment forms and other documents; and
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(m) subject to the other terms and conditions set forth in this
Agreement to take all other actions customary, reasonable and
necessary in the good faith judgment of the Agent, to effect
the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those specifically
set forth herein;
(b) not be required to refer to any documents for the performance
of its obligations hereunder other than this Agreement, the
L/T and the documents required to be submitted with the L/T;
other than such documents, the Agent will not be responsible
or liable for any terms, directions or information in the
Prospectus or any other document or agreement unless the Agent
specifically agrees thereto in writing;
(c) not be required to act on the directions of any person,
including the persons named above, unless the Company provides
a corporate resolution to the Agent or other evidence
satisfactory to the Agent of the authority of such person;
(d) not be required to and shall make no representations and have
no responsibilities as to the validity, accuracy, value or
genuineness of (i) the Exchange Offer, (ii) any certificates,
L/T's or documents prepared by the Company in connection with
the Exchange Offer or (iii) any signatures or endorsements,
other than its own;
(e) not be obligated to take any legal action hereunder that
might, in its judgement, involve any expense or liability,
unless it has been furnished with reasonable indemnity by the
Company;
(f) be able to rely on and shall be protected in acting on the
written or oral instructions with respect to any matter
relating to its actions as Agent specifically covered by this
Agreement, of any officer of the Company authorized to give
instructions under paragraph (g) or (h) above;
(g) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or
any other document or security delivered to it and believed by
it reasonably and in good faith to be genuine and to have been
signed by the proper party or parties;
(h) not be responsible for or liable in any respect on account of
the identity, authority or rights of any person executing or
delivering or purporting to execute or deliver any document or
property under this Agreement and shall have no responsibility
with respect to the use or application of any property
delivered by it pursuant to the provisions hereof;
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(i) be able to consult with counsel satisfactory to it (including
counsel for the Company or staff counsel of the Agent) 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 by it hereunder in good faith and in
accordance with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not advise,
any person delivering an L/T pursuant to the Exchange Offer as
to the value of the consideration to be received;
(k) not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own
gross negligence, willful misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof,
unless evidenced by a writing delivered to the Agent signed by
the proper authority or authorities and, if the Agent's duties
or rights are affected, unless the Agent shall give its prior
written consent thereto;
(m) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to
enforce any obligation of any person to perform any other act;
and
(n) have the right to assume, in the absence of written notice to
the contrary from the proper person or persons, that a fact or
an event by reason of which an action would or might be taken
by the Agent does not exist or has not occurred without
incurring liability for any action taken or omitted, or any
action suffered by the Agent to be taken or omitted, in good
faith or in the exercise of the Agent's best judgement, in
reliance upon such assumption.
The Agent shall be entitled to compensation as set forth in Exhibit B attached
hereto.
The Company covenants and agrees to reimburse the Agent for, indemnify it
against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of counsel and allocated cost of staff
counsel) that may be paid or incurred or suffered by it or to which it may
become subject without gross negligence, willful misconduct or bad faith on its
part by reason of or as a result of its compliance with the instructions set
forth herein or with any additional or supplemental written or oral instructions
delivered to it pursuant hereto, or which may arise out of or in connection with
the administration and performance of its duties under this Agreement. The
Company agrees to promptly notify the Agent of any extension of the Expiration
Date. The provisions of this paragraph shall survive any termination of this
Agreement.
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This Agreement shall be construed and enforced in accordance with the laws of
the State of New York and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of the parties
hereto. The parties agree to submit and to the exclusive jurisdiction of the
federal or state courts located in the State of New York, New York County.
Unless otherwise expressly provided herein, all notices, requests, demands and
other communications hereunder shall be in writing, shall be delivered by hand,
facsimile or by First Class Mail, postage prepaid, shall be deemed given when
received and shall be addressed to the Agent and the Company at the respective
addresses listed below or to such other addresses as they shall designate from
time to time in writing, forwarded in like manner.
If to the Agent, to: IBJ Whitehall Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Reorganization Operations Dept.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: IBJ Whitehall Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Finance Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
with copies to:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on their behalf by their officers thereunto duly authorized, all as of the day
and year first above written.
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IBJ Whitehall Bank & Trust Company
By: _____________________________
Assistant Vice President
( Company Name )
By: ______________________________
Name:
Title:
EXHIBIT A
SAMPLE REPORT
Date:______________________
Report Number: ___________
As of Date:________________
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated _________________, 1999, we
hereby render the following report:
Principal Amount previously received: ________________
Principal Amount received today: ________________
Principal Amount received against Guarantees: ________________
Principal Amount withdrawn today: ________________
Total Principal Amount received to date: ================
RECAP OF PRINCIPAL AMOUNT REPRESENTED BY GUARANTEES
Guarantees previously outstanding: ________________
Guarantees received today: ________________
Guarantees settled today: ________________
Guarantees withdrawn today: ________________
Guarantees outstanding: ________________
Total Principal Amount and Guarantees Outstanding: ================
Very truly yours,
Reorganization Operations Dept.
EXHIBIT B
COMPENSATION
The Agent for serving as the Exchange Agent pursuant to this Agreement,
shall receive a fee of $2,500, payable upon commencement of the
Exchange Offer, and the Agent's out-of-pocket expenses incurred in
connection with completing its duties pursuant to this Agreement.
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