, 1997
EXCHANGE AGENT AGREEMENT
State Street Bank and Trust Company
Corporate Trust Administration, CT/OP/0238
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Assistant Vice President
Dear Xx. Xxxxxxxx:
Xxxxx Aluminum Corporation, a Maryland corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange up to
$105,000,000 aggregate principal amount of its 10 1/8% Series B Senior Notes
due 2005 (the "Exchange Notes"), for a like principal amount of its
outstanding 10 1/8% Series A Senior Notes due 2005 (the "Private 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. 333-31071), as amended (the "Registration Statement"), filed with
the Securities and Exchange Commission (the "SEC"), proposed to be distributed
to all record holders of the Private Notes. The Private Notes and the Exchange
Notes are collectively referred to herein as the "Notes." Capitalized terms
used herein and not defined shall have the respective meanings ascribed to
them in the Prospectus.
The Company hereby appoints State Street Bank and Trust
Company to act as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to State Street
Bank and Trust Company.
The Exchange Offer is expected to be commenced by the
Company on or about _____, 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Private Notes to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Private Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City
time, on _____, 1997, 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 next business day after 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 Private 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 or
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 an account with respect to the Private
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
Private Notes by causing the Book-Entry Transfer Facility to transfer such
Private Notes into your account in accordance with the Book-Entry Transfer
Facility's procedures for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (and confirmation of book-entry transfers of
Private Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the Private
Notes, to ascertain whether: (i) the Letters of Transmittal, certificates and
any such other documents are duly executed and properly completed in
accordance with 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, and (ii) the Private 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 book-entry
confirmations are not in due and proper form or omit certain information, or
any of the certificates for Private 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.
4. With the approval of the Chairman, the President and
Chief Executive Officer, any of the Executive Vice Presidents or _______ (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 Private Notes pursuant to the
Exchange Offer.
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5. Tenders of Private Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering", and Private 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, Private Notes which the Chairman, the President and Chief Executive
Officer, any of the Executive Vice Presidents or __________ or any other
officer of the Company designated by any such person 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 Private
Notes received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private 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 Private Notes provided that customary transfer requirements, including
those regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes
when so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Private Notes to the transfer agent for split-up and return
any untendered Private 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 conditions 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 Private Notes properly tendered and you, on behalf of the
Company, will exchange such Private Notes for Exchange Notes and cause such
Private Notes to be canceled. 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 Private Notes tendered
promptly after notice (such notice if given orally, to be confirmed in
writing) of acceptance of said Private Notes by the Company; provided,
however, that in all cases, Private Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates for
such Private Notes (or confirmation of book-entry transfer into your account
at the Book-Entry Transfer Facility), a properly completed and, except as
described in the section of the prospectus captioned "The Exchange Offer --
Procedures for Tendering", duly executed Letter of Transmittal (or
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facsimile thereof) with any required signature guarantees 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.
9. 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, Private 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.
10. The Company shall not be required to exchange any
Private 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
Private 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 Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus or otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates for unaccepted
Private 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 (or effected
such book-entry transfer).
12. All certificates for reissued Private Notes, unaccepted
Private Notes or for Exchange Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class certified mail, return receipt
requested, under a blanket surety bond obtained by you protecting you and the
Company from loss or liability arising out of the nonreceipt or nondelivery of
such certificates or (b) by registered mail insured by you 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 other solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any person
to solicit tenders.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than
those specifically set forth in the Prospectus, the Letter of Transmittal or
herein or as may be subsequently agreed to in writing by you and the Company;
(b) 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 Private 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;
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(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 reasonable indemnity;
(d) may reasonably rely on and shall be protected
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 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 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 written opinion of such
counsel; and
(h) shall not advise any person tendering Private
Notes pursuant to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of Private Notes or as to the market value,
decline or appreciation in market value of any Private Notes that may or may
not occur as a result of the Exchange Offer or as to the market value of the
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.
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.
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to ______ of the Company (telephone
number ( ___) ____________, facsimile number (__) ________), and such other
person or persons as the
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Company may request, daily __________ up to and including the Expiration Date,
as to the aggregate principal amount of Private Notes which have been duly
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 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
Private Notes tendered, the aggregate principal amount of Private Notes
accepted and the identity of any Participating Broker-Dealers and the
aggregate principal amount of Exchange Notes delivered to each, and deliver
said list to the Company.
17. Letters of Transmittal, book-entry confirmations and
Notices of Guaranteed Delivery received by you 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 as instructed by the
Company.
18. 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 or credit agreement with you or for compensation owed to you
hereunder.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto.
20. 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.
21. The Company covenants and agrees to indemnify and hold
you harmless in your capacity as Exchange Agent 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 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
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any transfer of Private 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 Private 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 cable or
by 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 disbursements of legal counsel for you under this paragraph so long
as the Company shall retain counsel reasonably satisfactory to you to defend
such suit; provided, 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 paragraph
for the fees and expenses of more than one legal counsel for you.
22. 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, in
certain instances, to deduct thirty-one percent (31%) with respect to interest
paid on the Exchange Notes and proceeds from the sale, exchange, redemption or
retirement of the Exchange Notes from holders who have not supplied their
correct Taxpayer Identification Number or required certification. Such funds
will be turned over to the Internal Revenue Service in accordance with
applicable regulations.
23. You shall notify the Company of the amount of any
transfer taxes payable in respect of the exchange of Private Notes and, upon
receipt of a written approval from the Company, 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 Private 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 Private 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.
24. 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.
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25. This Agreement shall be binding upon and inure 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,
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 Private Notes or Exchange Notes shall have any right,
benefit or remedy of any nature whatsoever under, or by reason of, this
Agreement.
26. 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.
27. 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.
28. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part except
by a written instrument signed by a duly authorized representative of the
party to be charged.
29. 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, to:
Xxxxx Aluminum Corporation
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention:
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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If to the Exchange Agent, to:
State Street Bank and Trust Company
Corporate Trust Administration, CT/OP/0238
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Assistant Vice President
30. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, paragraphs 17, 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.
31. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
XXXXX ALUMINUM CORPORATION
By: _______________________
Name:
Title:
Accepted as of the date first above written:
STATE STREET BANK AND TRUST
COMPANY, as Exchange Agent
By: ____________________________
Name:
Title:
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