EXHIBIT 99.5
FORM OF EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into as
of ___________, 2002 by and between Xxxxxx Energy LLC, a Delaware limited
liability company, (the "Issuer") and Bank One Trust Company, N.A., a national
banking association incorporated and existing under the laws of the United
States of America, and its successors as exchange agent (the "Exchange Agent").
RECITALS
The Issuer proposes to make an offer to exchange, upon the terms and subject
to the conditions set forth in the Issuer's Prospectus dated ___________, 2002
(the "Prospectus"), and the accompanying letter of transmittal (the "Letter of
Transmittal") attached hereto as Exhibit A (which together with the Prospectus
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constitutes the "Exchange Offer"), its 8.159% Senior Secured Bonds due 2026 (the
"Restricted Securities") issued in reliance upon an exemption from registration
under the Securities Act of 1933, as amended (the "Securities Act") for an equal
principal amount of bonds having identical terms that have been registered under
the Securities Act (the "Exchange Securities" and, together with the Restricted
Securities, the "Securities.")
The Exchange Offer will commence as soon as practicable after the Issuer's
Registration Statement on Form S-4 relating to the Exchange Offer is declared
effective under the Securities Act, as certified in writing to Exchange Agent by
the Issuer (the "Effective Time") and shall terminate at 5:00 p.m., New York
City time, on ____________, 2002 (the "Expiration Date"), unless the Exchange
Offer is extended by the Issuer and the Issuer notifies Exchange Agent of such
extension by 5:00 p.m., New York City time, on the previous Expiration Date, in
which case, the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended. In connection therewith, the undersigned
parties hereby agree as follows:
1. Appointment and Duties as Exchange Agent. Issuer hereby authorizes Bank
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One Trust Company, N.A., to act as Exchange Agent in connection with the
Exchange Offer, and Bank One Trust Company, N.A., hereby agrees to act as
Exchange Agent and to perform the services outlined herein in connection with
the Exchange Offer on the terms and conditions contained herein.
2. Mailing to Holders of the Restricted Securities. A. As soon as
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practicable after its receipt of certification from the Issuer as to the
Effective Time, Exchange Agent will mail to each Holder (as defined in the
Indenture), and to each DTC participant identified by DTC as a holder of any
Restricted Securities (i) a Letter of Transmittal with instructions (including
instructions for completing a substitute Form W-9), substantially in the form
attached hereto as Exhibit A (the "Letter of Transmittal"), (ii) a Prospectus
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and (iii) a Notice of Guaranteed Delivery substantially in the form attached
hereto as Exhibit B (the "Notice of Guaranteed Delivery") all in accordance with
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the procedures described in the Prospectus.
B. Issuer shall supply Exchange Agent with sufficient copies of the
Prospectus, Letter of Transmittal and Notice of Guaranteed Delivery to enable
Exchange Agent to perform its duties hereunder. Issuer shall also furnish or
cause to be furnished to Exchange Agent a list of the holders of the Restricted
Securities (including a beneficial holder list from The Depository Trust Company
("DTC"), certificated Restricted Securities numbers and amounts, mailing
addresses, and social security numbers), unless waived by Exchange Agent.
3. ATOP Registration. As soon as practicable but in no event later than five
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business days after the date of the Prospectus, Exchange Agent shall establish
an account with DTC in its name to facilitate book-entry tenders of Restricted
Securities through DTC's Automated Tender Offer Program (herein "ATOP") for the
Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items. From and after the
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Effective Time, Exchange Agent is hereby authorized and directed to accept (i)
Letters of Transmittal, duly executed in accordance with the instructions
thereto (or a manually signed facsimile thereof), and any requisite collateral
documents from Holders of the Restricted Securities and (ii) surrendered
Restricted Securities to which such Letters of Transmittal relate. Exchange
Agent is authorized to request from any person tendering Restricted Securities
such additional documents as Exchange Agent or the Issuer deems appropriate.
Exchange Agent is hereby authorized and directed to process withdrawals of
tenders to the extent withdrawal thereof is authorized by the Exchange Offer.
5. Defective or Deficient Restricted Securities and Instruments. A. As soon
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as practicable after receipt, Exchange Agent will examine instructions
transmitted by DTC ("DTC Transmissions"), Restricted Securities, Letters of
Transmittal and other documents received by Exchange Agent in connection with
tenders of Restricted Securities to ascertain whether (i) the Letters of
Transmittal are completed and executed in accordance with the instructions set
forth therein (or that the DTC Transmissions contain the proper information
required to be set forth therein), (ii) the Restricted Securities have otherwise
been properly tendered in accordance with the Prospectus and the Letters of
Transmittal (or that book-entry confirmations are in due and proper form and
contain the information required to be set forth therein) and (iii) if
applicable, the other documents (including the Notice of Guaranteed Delivery)
are properly completed and executed.
B. If any Letter of Transmittal or other document has been improperly
completed or executed (or any DTC Transmissions are not in due and proper form
or omit required information) or the Restricted Securities accompanying such
Letter of Transmittal are not in proper form for transfer or have been
improperly tendered (or the book-entry confirmations are not in due and proper
form or omit required information) or if some other irregularity in connection
with any tender of any Restricted Securities exists, Exchange Agent shall
promptly report such information to the Holder. If such condition is not
promptly remedied by the Holder, Exchange Agent shall report such condition to
the Issuer and await its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and withdrawal of any
Restricted Securities tendered or delivered shall be determined by the Issuer,
in its sole discretion. Notwithstanding the above, Exchange Agent shall not be
under any duty to give
notification of defects in such tenders and shall not incur any liability for
failure to give such notification unless such failure constitutes gross
negligence or willful misconduct.
C. The Issuer reserves the absolute right (i) to reject any or all tenders of
any particular Restricted Securities determined by the Issuer not to be in
proper form or the acceptance or exchange of which may, in the opinion of
Issuer's counsel, be unlawful and (ii) to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the tender of any particular
Restricted Securities, and the Issuer's interpretation of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and Notice
of Guaranteed Delivery and the instructions set forth therein) will be final and
binding.
6. Requirements of Tenders. A. Tenders of Restricted Securities shall be
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made only as set forth in the Letter of Transmittal and in the section of the
Prospectus captioned "The Exchange Offer - Procedures for Tendering the Existing
Bonds," and shall be considered properly tendered only when tendered in
accordance therewith. Notwithstanding the provisions of this paragraph, any
Restricted Securities that the Issuer's General Manager, or any other person
designated by the Issuer's Board of Managers shall approve as having been
properly tendered shall be considered to be properly tendered (such approval, if
given orally, shall be confirmed in writing).
B. Exchange Agent shall (a) ensure that each Letter of Transmittal and the
related Restricted Securities or a bond power are duly executed (with signatures
guaranteed where required) by the appropriate parties in accordance with the
terms of the Exchange Offer; (b) in those instances where the person executing
the Letter of Transmittal (as indicated on the Letter of Transmittal) is acting
in a fiduciary or a representative capacity, ensure that proper evidence of his
or her authority so to act is submitted; and (c) in those instances where the
Restricted Securities are tendered by persons other than the registered holder
of such Restricted Securities, ensure that customary transfer requirements,
including any applicable transfer taxes, and the requirements imposed by the
transfer restrictions on the Restricted Securities (including any applicable
requirements for certifications, legal opinions or other information) are
fulfilled.
7. Exchange of the Restricted Securities. A. Promptly after the Effective
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Time and upon the satisfaction or waiver of all conditions to the Exchange
Offer, the Issuer will deliver the Exchange Securities to the Exchange Agent.
Upon surrender of the Restricted Securities properly tendered in accordance with
the Exchange Offer, Exchange Agent is hereby directed to deliver or cause to be
delivered Exchange Securities to the Holders of such surrendered Restricted
Securities. The principal amount of the Exchange Securities to be delivered to
a Holder shall equal the principal amount of the Restricted Securities
surrendered.
B. The Exchange Securities issued in exchange for certificated Restricted
Securities shall be mailed by Exchange Agent, in accordance with the
instructions contained in the Letter of Transmittal, by first class or
registered mail, and under coverage of Exchange Agent's blanket surety bond for
first class or registered mail losses protecting the Issuer from loss or
liability arising out of the non-receipt or non-delivery of such Exchange
Securities or the replacement thereof.
C. Notwithstanding any other provision of this Agreement, issuance of the
Exchange Securities for accepted Restricted Securities pursuant to the Exchange
Offer shall be made only after deposit with Exchange Agent of the Restricted
Securities, the Letter of Transmittal and any other required documents.
8. Securities Held in Trust. The Exchange Securities and any cash or other
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property (the "Property") deposited with or received by Exchange Agent (in such
capacity) from the Issuer shall be held in a segregated account, solely for the
benefit of Issuer and Holders tendering Restricted Securities, as their
interests may appear, and the Property shall not be commingled with securities,
money, assets or property of Exchange Agent or any other party. Exchange Agent
hereby waives any and all rights of lien, if any, against the Property, except
to the extent set forth in the Indenture with respect to the Exchange
Securities.
9. Reports to Issuer. Exchange Agent shall notify, by facsimile or
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electronic communication, the Issuer of the principal amount of the Restricted
Securities which have been duly tendered since the previous report and the
aggregate amount tendered since the Effective Date on a weekly basis (and more
frequently during the week immediately preceding the Expiration Date if
requested by the Issuer) until the Expiration Date. Such notice shall be
delivered in substantially the form set forth as Exhibit C.
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10. Record Keeping. Each Letter of Transmittal, Restricted Security and any
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other documents received by Exchange Agent in connection with the Exchange Offer
shall be stamped by Exchange Agent to show the date of receipt (or if Restricted
Securities are tendered by book-entry delivery, such form of record keeping of
receipt as is customary for tenders through ATOP) and, if defective, the date
and time the last defect was cured or waived by the Issuer. Exchange Agent
shall cancel certificated Restricted Securities. Exchange Agent shall retain
all Restricted Securities and Letters of Transmittal and other related documents
or correspondence received by Exchange Agent until the Expiration Date.
Exchange Agent shall return all such material to Issuer as soon as practicable
after the Expiration Date. If Exchange Agent receives any Letters of
Transmittal after the Expiration Date, Exchange Agent shall return the same
together with all enclosures to the party from whom such documents were
received.
11. Discrepancies or Questions. Any discrepancies or questions regarding any
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Letter of Transmittal, Restricted Security, notice of withdrawal or any other
documents received by Exchange Agent in connection with the Exchange Offer shall
be referred to Issuer and Exchange Agent shall have no further duty with respect
to such matter; provided that Exchange Agent shall cooperate with Issuer in
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attempting to resolve such discrepancies or questions.
12. Transfer of Registration. Exchange Securities may be registered in a
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name other than that of the record Holder of a surrendered Restricted Security,
if and only if (i) the Restricted Security surrendered shall be properly
endorsed (either by the registered Holder thereof or by a properly completed
separate power with such endorsement guaranteed by an Eligible Institution (as
defined in the Letter of Transmittal) and otherwise in proper form for transfer,
(ii) the person requesting such transfer of registration shall pay to Exchange
Agent any transfer or other taxes required, or shall establish to Exchange
Agent's satisfaction that such tax is not owed or has been paid and (iii) the
such other documents and instruments as Issuer or Exchange Agent require shall
be received by Exchange Agent.
13. Partial Tenders. If, pursuant to the Exchange Offer, less than all of
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the principal amount of any Restricted Security submitted to Exchange Agent is
tendered, Exchange Agent shall, promptly after the Expiration Date, return, or
cause the registrar with respect to each such Restricted Security to return, a
new Restricted Security for the principal amount not being tendered to, or in
accordance with the instruction of, the Holder who has made a partial tender.
14. Withdrawals. A tendering Holder may withdraw tendered Restricted
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Securities as set forth in the Prospectus and the Letter of Transmittal at any
time on or before the Expiration Date, in which event Exchange Agent shall,
after proper notification of such withdrawal, return such Restricted Securities
to, or in accordance with the instructions of, such Holder and such Restricted
Securities shall no longer be considered properly tendered. Any withdrawn
Restricted Securities may be tendered by again following the procedures therefor
described in the Prospectus at any time on or prior to the Expiration Date.
15. Rejection of Tenders. If, pursuant to the Exchange Offer, Issuer does
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not accept for exchange all of the Restricted Securities tendered by a Holder of
Restricted Securities, Exchange Agent shall as soon as practicable after the
expiration or termination of the Exchange Offer return or cause to be returned
such Restricted Securities to, or in accordance with the instructions of, such
Holder of Restricted Securities.
16. Cancellation of Exchanged Restricted Securities. Exchange Agent is
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authorized and directed to cancel all Restricted Securities received by it upon
delivering the Exchange Securities to tendering holders of the Restricted
Securities as provided herein. Exchange Agent shall maintain a record as to
which Restricted Securities have been exchanged pursuant to Section 7 hereof.
17. Requests for Information. Exchange Agent shall accept and comply with
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telephone and mail requests for information from any person concerning the
proper procedure to tender Restricted Securities. Exchange Agent shall provide
copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery to any person upon request. All other requests for materials shall be
referred to the Issuer. Exchange Agent shall not offer any concessions or pay
any commissions or solicitation fees to any brokers, dealers, banks or other
persons or engage any persons to solicit tenders.
18. Tax Matters. Exchange Agent shall file with the Internal Revenue Service
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and Holders Form 1099 reports regarding principal and interest payments on
Securities which Exchange
Agent has made in connection with the Exchange Offer, if any. Any questions with
respect to any tax matters relating to the Exchange Offer shall be referred to
Issuer, and Exchange Agent shall have no duty with respect to such matter;
provided that Exchange Agent shall cooperate with Issuer in attempting to
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resolve such questions.
19. Reports. Within 5 days after the Expiration Date, Exchange Agent shall
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furnish the Issuer a final report showing the disposition of the Exchange
Securities.
20. Fees and Expenses. Issuer will pay Exchange Agent its fees plus
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expenses, including counsel fees and disbursements, as set forth in Exhibit D.
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21. Concerning the Exchange Agent. As exchange agent hereunder, Exchange
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Agent:
A. shall have no duties or obligations other than those specifically set
forth in this Agreement;
B. will make no representation and will have no responsibility as to the
validity, value or genuineness of the Exchange Offer, shall not make any
recommendation as to whether a Holder of Restricted Securities should or should
not tender its Restricted Securities and shall not solicit any Holder for the
purpose of causing such Holder to tender its Restricted Securities;
C. shall not be obligated to take any legal action hereunder which may, in
Exchange Agent's sole judgment, involve any expense or liability to Exchange
Agent unless it shall have been furnished with indemnity against such expense or
liability which, in Exchange Agent's sole judgment, is adequate;
D. may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, instruction, letter, telegram or other document, or
any security, delivered to Exchange Agent and believed by Exchange Agent to be
genuine and to have been signed by the proper party or parties;
E. may rely on and shall be protected in acting upon the written instructions
of Issuer, its counsel, or its representatives;
F. shall not be liable for any claim, loss, liability or expense, incurred
without Exchange Agent's negligence, bad faith or willful misconduct, arising
out of or in connection with the administration of Exchange Agent's duties
hereunder; and
G. may consult with counsel, and the advice of such counsel or any opinion of
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by Exchange Agent hereunder in accordance
with the advice of such counsel or any opinion of counsel.
22. Indemnification. A. Issuer covenants and agrees to indemnify and hold
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harmless Exchange Agent, its directors, officers, employees and agents (the
"Indemnified Persons") against any and all losses, damages, costs or expenses
(including reasonable attorney's fees and
court costs), arising out of or attributable to its acceptance of appointment as
Exchange Agent hereunder, provided that such indemnification shall not apply to
losses, damages, costs or expenses incurred due to negligence, bad faith or
willful misconduct of the Exchange Agent. Exchange Agent shall notify Issuer in
writing of any written asserted claim against Exchange Agent or of any other
action commenced against Exchange Agent, reasonably promptly after Exchange
Agent shall have received any such written assertion or shall have been served
with a summons in connection therewith. Issuer shall be entitled to participate
at its own expense in the defense of any such claim or other action and, if
Issuer so elects, Issuer may assume the defense of any pending or threatened
action against Exchange Agent in respect of which indemnification may be sought
hereunder; provided that Issuer shall not be entitled to assume the defense of
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any such action if the named parties to such action include both the Issuer and
Exchange Agent and representation of both parties by the same legal counsel
would, in the written opinion of counsel for Exchange Agent, be inappropriate
due to actual or potential conflicting interests between them; and further
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provided that in the event Issuer shall assume the defense of any such suit, and
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such defense is reasonably satisfactory to Exchange Agent, Issuer shall not
therewith be liable for the fees and expenses of any counsel retained by
Exchange Agent.
B. Exchange Agent agrees that, without the prior written consent of Issuer
(which consent shall not be unreasonably withheld), it 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 provision of this Agreement (whether or
not any Indemnified Persons is an actual or potential party to such claim,
action or proceeding).
23. Applicable Law. This Agreement shall be construed and enforced in
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accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
24. Notices. Notices or other communications pursuant to this Agreement
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shall be delivered by facsimile transmission, reliable overnight courier or by
first-class mail, postage prepaid, addressed as follows:
To Issuer at: Xxxxxx Energy LLC
c/o Dominion Resources Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
and
Xxxxxx Energy LLC
c/o Peoples Energy Resources Corp.
000 Xxxxx Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
McGuireWoods LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: D. Xxxxxxx Xxxxx
Fax:
Or to Exchange Agent at:
Bank One Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxx, XX 00000
Attention: Exchanges
Fax: (000) 000-0000
Telephone: (000) 000-0000
Or to such address as either party shall provide by notice to the other party.
25. Change of Exchange Agent. Exchange Agent may resign from its duties under
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this Agreement by giving to Issuer thirty days prior written notice. If
Exchange Agent resigns or becomes incapable of acting as Exchange Agent and the
Issuer fails to appoint a new exchange agent within a period of 30 days after it
has been notified in writing of such resignation or incapacity by Exchange
Agent, the Issuer shall appoint a successor exchange agent or assume all of the
duties and responsibilities of Exchange Agent. Any successor exchange agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Exchange Agent without any further act or deed;
but Exchange Agent shall deliver and transfer to the successor exchange agent
any Property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for such purpose.
26. Miscellaneous. Neither party may transfer or assign its rights or
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responsibilities under this Agreement without the written consent of the other
party hereto; provided, however, that Exchange Agent may transfer and assign its
rights and responsibilities hereunder to any of its affiliates otherwise
eligible to act as Exchange Agent and, upon 45 days prior written notice to
Exchange Agent, Issuer may transfer and assign its rights and responsibilities
hereunder to any successor by merger, any purchaser of all of the common stock
of Issuer, or any purchaser of all or substantially all of Issuer's assets.
This Agreement may be amended only in writing signed by both parties. Any
Exchange Securities which remain undistributed after the Expiration Date shall
be cancelled and delivered to the Issuer upon demand, and any Restricted
Securities which are tendered thereafter shall be returned by Exchange Agent to
the tendering party. Except for Sections 20 and 22, this Agreement shall
terminate on the 31st day after the Expiration Date.
27. Severability. In case any provision of this Agreement shall be invalid,
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illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
28. Parties in Interest. This Agreement shall be binding upon and inure
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solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefits or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto expressly
agree that no Holder or holder of Securities shall have any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
29. Entire Agreement; Headings. This Agreement constitutes the entire
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understanding of the parties hereto with respect to the subject matter hereof.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
30. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Issuer and Exchange Agent have caused this Agreement to be
signed by their respective officers thereunto authorized as of the date first
written above.
XXXXXX ENERGY LLC
By: ______________________________
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
By: ______________________________
Name:
Title:
Exhibit A
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Form of Letter of Transmittal
Exhibit B
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Notice of Guaranteed Delivery
Exhibit C
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Form of Weekly Report
Exhibit D
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Exchange Agent Fee Schedule
Exhibit C
Date: ____________________
Xxxxxx Energy LLC
BY FAX: ________________________
Re: Notice of Tenders
With respect to Section 9 of the Exchange Agent Agreement, dated as of
_______________, we confirm the following information as of the date hereof:
1. Principal amount of Restricted Securities tendered during the past
week: $____________________
2. Principal amount of Restricted Securities referred to in paragraph 1.
above regarding which Exchange Agent questions validity of the tender:
$____________________
3. Aggregate principal amount of Restricted Securities tendered since the
Effective Date as to which Exchange Agent questions the validity of
the tender: $___________________.
4. Principal amount of Restricted Securities remaining unpresented (based
on $______________ total Restricted Securities): $__________________
5. Total aggregate principal amount of Restricted Securities validly
tendered since the Effective Date: $_____________________
Bank One Trust Company, N.A.,
as Exchange Agent
By: _____________________________
Name:
Title:
Exhibit D
Schedule of Fees
Per letter of transmittal mailed: $150.00
Minimum fee: $2,000.00
Extraordinary services and special requests: by appraisal
Out of pocket expenses incurred will be billed for reimbursement at invoiced
cost
The minimum fee of $2,000.00 shall be due and payable upon execution of the
Exchange Agent Agreement. The remaining balance shall be due and payable upon
receipt of Exchange Agent's invoice therefor.
