Exhibit 99.5
Form of Exchange Agent Agreement
[_________ ___], 2002
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
IESI Corporation, a Delaware corporation (the "Company"), proposes to
make an offer (the "Exchange Offer") to exchange up to $150,000,000 principal
amount of its 10 1/4% Senior Subordinated Notes due 2012 ("Exchange Notes") for
a like principal amount of its outstanding, unregistered 10 1/4% Senior
Subordinated Notes due 2012 ("Outstanding Notes"). The terms and conditions of
the Exchange Offer are set forth in a prospectus (the "Prospectus") included in
the Company's registration statement on Form S-4 (File No. 333-98657), as it may
be amended from time to time, filed with the Securities and Exchange Commission,
and proposed to be distributed to all record holders of Outstanding Notes. The
Outstanding Notes and the Exchange Notes are collectively referred to herein as
the "Notes." The Outstanding Notes are, and the Exchange Notes will be, fully
and unconditionally guaranteed by the Subsidiary Guarantors (as defined in the
Prospectus). Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
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 [_______ ___], 2002. The letter of transmittal accompanying the Prospectus
(or in the case of book-entry securities, either the letter of transmittal or
the Automated Tender Offer Program ("ATOP") system of The Depository Trust
Company ("DTC")) is to be used by the holders of Outstanding Notes to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Outstanding Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
[______ ___], 2002 or on or at such subsequent 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, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any
Outstanding Notes not theretofore accepted for exchange. 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," in the letter of transmittal accompanying the Prospectus and as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish a book-entry account with respect to the
Outstanding Notes at DTC 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 DTC's systems may, until 5:00 p.m. on the Expiration Date, make
book-entry delivery of Outstanding Notes by causing DTC to transfer such
Outstanding Notes into your account in accordance with DTC's procedures for such
transfer. In every case, however, a letter of transmittal (or a manually
executed facsimile thereof), properly completed and duly executed, with any
required signature guarantees, or a properly transmitted agent's message, and
any other required documents must be submitted to and received by you prior to
5:00 p.m. on the Expiration Date or the guaranteed delivery procedures described
in the letter of transmittal must be complied with.
3. You are to examine each of the letters of transmittal and
certificates for Outstanding Notes (and confirmations of book-entry transfers
into your account at DTC) and any other documents delivered or mailed to you by
or for holders of Outstanding Notes, to ascertain whether: (i) the letters of
transmittal, certificates and any such other documents are duly executed and
properly completed in accordance with the instructions set forth therein and
that such book-entry confirmations are in due and proper form and contain the
information required to be set forth therein; (ii) Outstanding Notes have
otherwise been properly tendered; (iii) Outstanding Notes tendered in part are
tendered in denominations of $1,000 and integral multiples thereof; and (iv)
holders have provided their tax identification numbers or required
certifications. In each case where the letter of transmittal or any other
document has been improperly completed or executed, or where book-entry
confirmations are not in due and proper form or omit certain information, or
where any of the certificates for Outstanding 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. You are not
authorized to waive any irregularity in connection with a surrender except as
provided in Section 4.
4. With the approval of the President or any Vice President of the
Company (such approval, if given orally, to be confirmed in writing) or any
other person designated by such an officer in writing, you are authorized to
waive any irregularities in connection with any tender of Outstanding Notes
pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall
notify tendering holders of Outstanding Notes in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any termination
of the Exchange Offer, you shall return all tendered Outstanding Notes to the
persons entitled thereto, at the request and expense of the Company.
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6. Tenders of Outstanding Notes may be made only as set forth in the
letter of transmittal and in the sections of the Prospectus captioned "The
Exchange Offer," and Outstanding Notes shall be considered properly tendered to
you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 6, Outstanding Notes that the
President or any Vice President of the Company or any other person designated by
any such person shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, to be
confirmed in writing). Exchange Notes are to be issued in exchange for
Outstanding Notes pursuant to the Exchange Offer only (i) against deposit with
you on or prior to the Expiration Date or, in the case of a tender in accordance
with the guaranteed delivery procedures outlined in Instruction 2 of the letter
of transmittal, within three New York Stock Exchange trading days after the date
of execution of the applicable notice of guaranteed delivery, of such
Outstanding Notes together with executed letters of transmittal and any other
documents required by the Exchange Offer or (ii) in the event that the holder is
a participant in DTC's system, by the proper and timely utilization of DTC's
ATOP and timely receipt of any evidence required by the Exchange Offer.
7. You shall advise the Company with respect to any Outstanding Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Outstanding Notes.
8. You shall accept tenders:
(i) in cases where Outstanding Notes are registered in two or
more names, only if signed by all named holders;
(ii) in cases where the signing person (as indicated in the
letter of transmittal) is acting in a fiduciary or a representative capacity,
only when proper evidence of his or her authority to so act is submitted; and
(iii) from persons other than the registered holder of
Outstanding Notes, provided that customary transfer requirements, including
those regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Notes when so
indicated and as permitted in the letter of transmittal and deliver certificates
for such Outstanding Notes to the registrar for the Outstanding Notes for
split-up and return any untendered Outstanding 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.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company shall notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Outstanding Notes properly tendered and you, on behalf of the Company, shall
exchange such Outstanding Notes for Exchange Notes and cause such Outstanding
Notes to be cancelled. Delivery of Exchange Notes shall 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 Outstanding Notes tendered after notice (such notice,
if given orally, to be confirmed in writing) of acceptance of said Outstanding
Notes by the Company; provided, however, that in all cases, Outstanding Notes
tendered pursuant to the Exchange Offer shall be exchanged only after timely
receipt by you of certificates for such Outstanding Notes (or
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confirmation of book-entry transfer into your account at DTC), a properly
completed and duly executed letter of transmittal (or manually signed facsimile
thereof) with any required signature guarantees (except as otherwise described
in the section of the Prospectus captioned "The Exchange Offer--Procedures for
Tendering") and any other required documents. Unless otherwise instructed by the
Company, you shall issue Exchange Notes only in denominations of $1,000 or any
integral multiple thereof.
10. 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, Outstanding Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
11. As soon as practicable after the Expiration Date, you shall arrange
for cancellation of Outstanding Notes submitted to you or returned by DTC in
connection with the ATOP. Such Outstanding Notes shall be cancelled and retired
by you.
12. The Company shall not be required to exchange any Outstanding Notes
tendered if any of the conditions of the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Outstanding Notes tendered shall
be given (and, if given orally, confirmed in writing) by the Company to you.
13. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Outstanding Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus or
otherwise, you shall, promptly after the expiration or termination of the
Exchange Offer, return the certificates for those unaccepted Outstanding Notes
(or effect appropriate book-entry transfers), together with any related required
documents and the letters of transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfers).
14. All certificates for reissued Outstanding Notes, unaccepted
Outstanding Notes or for Exchange Notes (other than those effected by book-entry
transfer) shall be forwarded by first-class mail.
15. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, bank or other
persons or entities or to engage or utilize any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the letter of transmittal accompanying
the Prospectus or herein or as may be subsequently agreed to in writing between
you and the Company;
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(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates for the Outstanding 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;
(d) 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;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not only as to
its due execution and validity and the 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 and to have been signed or presented
by the proper person or persons;
(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company as set
forth herein;
(h) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the advice or written 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 written opinion of such counsel;
and
(i) shall not advise any person or entity tendering Outstanding
Notes pursuant to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of Outstanding Notes or as to the market value, or
decline or appreciation in market value, of any Outstanding Notes that may or
may not occur as a result of the Exchange Offer, or as to the market value of
Exchange Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
17. 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 described 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.
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18. You shall advise by email and promptly thereafter confirm in
writing or facsimile transmission to Xxxxxx X. Xxxxx, the Senior Vice President,
Chief Financial Officer, Treasurer and Assistant Secretary of the Company (email
address: xxxxxxx@xxxx.xxx, facsimile number: (000) 000-0000) and Xxxxxxxx
Xxxxxxxxxx, Esq., our outside counsel (email address: xxxxxxxxxxx@xxx.xxx,
facsimile number: (000) 000-0000), and such other person or persons as the
Company 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 and aggregate principal amount of
Outstanding Notes which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to the Exchange Offer and 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
designated by the Company upon oral request made from time to time prior to the
Expiration Date of such other information as it, he or she may reasonably
request. Such cooperation shall include, without limitation, the granting by you
to the Company and such persons as the Company may request 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, including the identity of the holders of Outstanding
Notes who have not tendered such Outstanding Notes as of the date such request
was made. You shall prepare a final list of all persons whose tenders were
accepted, the number and aggregate principal amount of Outstanding Notes
tendered, the number and aggregate principal amount of Outstanding Notes
accepted and the identity of any Participating broker-dealers and the number and
aggregate principal amount of Exchange Notes delivered to each, and deliver such
list to the Company.
19. Letters of transmittal, book-entry confirmations and notices of
guaranteed delivery shall be stamped by you as to the date and, after the
expiration of the Exchange Offer, 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, or one year,
whichever is longer, and thereafter shall be delivered by you to the Company.
You shall dispose of unused letters of transmittal and other surplus materials
by returning them to the Company.
20. 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, credit
or other agreement with you or for compensation owed to you hereunder or under
any other agreement.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as has been previously agreed to.
22. You hereby acknowledge receipt of the Prospectus and the letter of
transmittal accompanying the Prospectus 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 your duties, liabilities and
indemnification as Exchange Agent, which shall be controlled by this Agreement.
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23. The Company covenants and agrees to indemnify you and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable 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 Outstanding 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 Outstanding Notes; provided, however, that
anything in this Agreement to the contrary notwithstanding, 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. 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 facsimile which is 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 may assume the defense of any pending or threatened action against you
in respect of which indemnification may be sought hereunder, in which case the
Company shall not thereafter be responsible for the subsequently incurred fees
and expenses of legal counsel for you, so long as the Company shall retain
counsel reasonably satisfactory to you to defend such suit; provided, however,
that the Company shall not be entitled to assume the defense of any such action
if the named parties to such action include both you and the Company and
representation of both parties by the same legal counsel would, in the written
opinion of your counsel, be inappropriate due to actual or potential conflicting
interests between you and the Company. You understand and agree that the Company
shall not be liable under this section for the fees and expenses of more than
one legal counsel for you. Without the prior written consent of the Company, you
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not you, the Company or any of its
directors, officers or controlling persons is an actual or potential party to
such claim or proceeding) unless such settlement or consent includes an
unconditional release of the Company and its directors, officers and controlling
persons from all liability arising out of such claim, action or proceeding.
24. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing taxpayer
identification numbers, and shall file any appropriate reports with the Internal
Revenue Service.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Outstanding Notes and, upon receipt of a
written approval from the Company, 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 Outstanding Notes, the Company's check
in the amount of all transfer taxes so payable; provided, however, that you
shall reimburse the Company for amounts refunded to you in respect of the
payment of any such transfer taxes, at such time as such refund is received by
you.
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26. 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.
27. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and its successor and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Outstanding Notes or Exchange Notes shall have
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
28. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
29. 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.
30. 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.
31. 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 facsimile number set forth below:
If to the Company, to:
IESI Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
with a copy to:
IESI Corporation
0 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxx Xxxxxx, Esq.; and
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XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxxxxxxx, Esq.
If to the Exchange Agent, to:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
32. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 19, 21, 23, 25 and 26 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.
33. 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.
IESI CORPORATION
By:_______________________________
Name:__________________________
Title:_________________________
Accepted as of the date first above written:
THE BANK OF NEW YORK,
AS EXCHANGE AGENT
By:________________________________
Name:___________________________
Title:__________________________
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