EXHIBIT 99.4
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FORM OF
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of ______________, 1997 between IBJ
Xxxxxxxx Bank & Trust Company, a corporation organized under the laws of the
State of New York, as Exchange Agent (the "Agent") and Sun World
International, Inc. a corporation organized under the laws of the State of
Delaware (the "Company").
The Company proposes to exchange $1,000 principal amount of the Company's
11-1/4% First Mortgage Notes due 2004, Series B (the "New Notes") in exchange
(the "Exchange Offer") for an equal aggregate principal amount of the
Company's outstanding 11-1/4% First Mortgage Notes due 2004, Series A (the
"Old Notes") pursuant to the Registration Rights Agreement dated as of
April 16, 1997 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 April 13, 1997 (the "Indenture")
between the Company, and IBJ Xxxxxxxx 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
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 DTC electronic messages
sent 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 Xxxxx Xxxxxxx 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 Xxxxx
Xxxxxxx 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 Xxxxx Xxxxxxx at
000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, XX 00000, telephone:
(000) 000-0000, facsimile: (000) 000-0000;
(h) to follow and act upon any written amendments, modifications or
supplements to these instructions, 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 Noteholder's 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 certificates
received under the Exchange Offer, together with any related
assignment forms and other documents; and
(m) to take all other actions 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
directions or information in the Prospectus or any other document
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) 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;
(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.
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 Xxxxxxxx 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 Xxxxxxxx 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: Xxxxxxx Xxxxx
Sun World International, Inc.
000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Xxxx Xxxxxxxx Xxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
IBJ Xxxxxxxx Bank & Trust Company
By:__________________________________
Vice President
By:__________________________________
Vice President
EXHIBIT A
--------- SAMPLE REPORT
Date:___________________________________
Report Number:___________________________
As of Date:______________________________
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated____________________,1997,
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 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 $3,500, 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.
