EXHIBIT 99.4
June ___, 1998
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Frank's Nursery & Crafts, Inc. (the "Company") proposes
to make an offer (the "Exchange Offer") to exchange its new 10 1/4% Series B
Senior Subordinated Notes due 2008 (the "Exchange Notes") for its outstanding
10 1/4% Senior Subordinated Notes due 2008 (the "Old Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated July , 1998 (the "Prospectus"), proposed to be distrib-
uted to all record holders of the Old Notes. The Old Notes and the Exchange
Notes are collectively referred to herein as the "Notes".
The Company hereby appoints Bankers Trust Company to act
as exchange agent (the "Exchange Agent") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to Bankers Trust Company.
The Exchange Offer is expected to be commenced by the
Company on or about July ___, 1998. 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 Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old
Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York
City time, on , 1998 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 Notes
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
(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 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 certificates for 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 (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 where any of the
certificates for Old Notes are not in proper form for transfer or where 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 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," 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 President, Senior Vice President, Executive Vice President,
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 confirmed in writing).
6. You shall advise the Company with respect to any
Old Notes received 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
certificates for 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 con-
ditions 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 Notes properly tendered and you, on behalf of
the Company, will exchange such Old Notes for Exchange Notes and cause such
Old Notes to be cancelled. Delivery of Exchange Notes will be made on behalf
of the Company by you at the rate of $1,000 principal amount of Exchange
Notes for each $1,000 principal amount of the corresponding series of Old
Notes tendered promptly after notice (such notice if given orally, 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 Ex-
change 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) with any required
signature guarantees and any other required documents. You shall issue
Exchange Notes only in denominations of $1,000 or any integral multiple
thereof.
9. Tenders pursuant to the Exchange Offer are ir-
revocable, 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 (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 Notes 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 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 certificates for reissued Old Notes, unac-
cepted Old Notes or for Exchange Notes 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 repre-
sentations and having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the certificates or the Old Notes 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 indemnity
reasonably satisfactory to you;
(d) may reasonably rely on and shall be pro-
tected and indemnified as provided in Section 21 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 and
indemnified as provided in Section 21 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 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.
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: Chief Financial Officer.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to Chief Financial
Officer 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 Expi-
ration 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 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
Notes tendered, 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 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. For services rendered as Exchange Agent hereun-
der, you shall be entitled to such compensation as set forth on Schedule I
attached hereto.
19. 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.
20. The Company covenants and agrees to indemnify and
hold you and your officers, directors, employees, agents and affiliates
(collectively the "Indemnified Parties" and each an "Indemnified Party")
harmless 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 an Indemnified Party in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by any such
Indemnified Party to be valid, genuine and sufficient and in accepting any
tender or effecting any transfer of Old Notes reasonably believed by any such
Indemnified Party 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 the Company 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. Any such Indemnified
Party shall use its best effort to notify the Company by letter, or by cable,
telex or telecopier confirmed by letter, of the written assertion of a claim
against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a
claim or shall have been served with a summons, or other legal process,
giving information as to the nature and basis of the claim; provided,
however, that failure to so notify the Company shall not relieve the Company
or any liability which it may otherwise have hereunder except such liability
that is a direct result of such Indemnified Party's failure to so notify the
Company. 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 ad-
ditional counsel thereafter retained by an Indemnified Party so long as the
Company shall retain counsel satisfactory to such Indemnified Party to defend
such suit unless such fees and expenses were incurred as a result of the need
to have separate representation because of a conflict of interest between
such Indemnified Party and the Company.
21. 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 Tax-
payer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service in accordance with applicable
regulations.
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 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, 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.
27. 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:
Frank's Nursery & Crafts, Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
If to the Exchange Agent:
Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust and Agency Group
28. 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 Notes, 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 arrangements herein provided by signing and returning the enclosed copy.
Frank's Nursery & Crafts, Inc.
By:______________________
Name:
Title:
Accepted as the date
first above written:
Bankers Trust Company, as Exchange Agent
By:_____________________
Name:
Title:
