EXHIBIT 99.5
EXCHANGE AGENCY AGREEMENT
1. This Agreement is entered into as of March ___, 1999 between The Bank
of New York, a banking corporation organized under the laws of the State of New
York, as Exchange Agent (the "Agent") and The Xxxxxxxx Group, Inc., a Delaware
corporation (the "Company").
2. The Company proposes to make an offer to exchange (the "Exchange
Offer") $1,000 principal amounts of the Company's 9% Series B Senior
Subordinated Notes due 2009 (the "Exchange Notes") for equal principal amounts
of the Company's outstanding 9% Series A Senior Subordinated Notes due 2009 (the
"Initial Notes" and, together with the Exchange Notes, the "Notes"), of which
$200,000,000 aggregate principal amount is outstanding, pursuant to the
Prospectus dated March 9, 1999 and the accompanying Letter of Transmittal. The
Exchange Offer will terminate at 5:00 p.m. New York City Time on April 6,
1999,unless extended by the Company in its sole discretion (the "Expiration
Date"). The Exchange Notes are to be issued by the Company pursuant to the terms
of an Indenture dated as of December 14, 1998 (the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee").
3. Subject to the provisions hereof, the Company hereby requests, and the
Agent hereby accepts, the appointment of Agent as agent for the purposes of
receiving, accepting for delivery and otherwise acting upon tenders of the
Initial Notes (the "Certificates") in accordance with the form of Letter of
Transmittal attached hereto (the "Letter of Transmittal") and with the terms and
conditions set forth herein and under the caption "The Exchange Offer" in the
Prospectus.
4. The Agent has received the following documents (the "Exchange Offer
Documents") in connection with its appointment and has examined such documents
to the extent necessary to perform its duties hereunder:
(a) Letter of Transmittal;
(b) a form of Notice of Guaranteed Delivery;
(c) the Prospectus;
(d) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees; and
(e) a form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
The Company shall furnish you with additional copies of such documents at your
request.
5. The Agent is authorized and hereby agrees to act as follows:
(a) to establish an account with respect to the Initial Notes at the
Depository Trust Company ("DTC") for purposes of the Exchange Offer
within two business days after the date of this Agreement, and any
financial institution that is a participant in DTC may make book-entry
delivery of the Initial Notes by causing DTC to transfer such Initial
Notes into your account in accordance with DTC's procedures for such
transfer;
(b) 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, or who appears on a
security position listing for, the Initial Notes, promptly after such
person becomes such a registered holder or appears on such security
position listing, and, upon the request of any Designated Officer, to
furnish copies of such Exchange Offer Documents 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;
(c) to receive all tenders of Initial Notes made pursuant to the Exchange
Offer and stamp the Letter of Transmittal and any Notices of
Guaranteed Delivery with the day, month and approximate time of
receipt;
(d) to examine each Letter of Transmittal and Initial Notes (or
confirmations of book-entry transfers into the Agent's account at DTC)
and any Agent's Message or other documents delivered by or for holders
of Initial Notes to determine that all requirements necessary to
constitute a valid tender have been met. The Agent shall be entitled
to rely on the electronic messages sent by DTC 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;
(e) to take such actions as are necessary and appropriate to correct any
irregularity or deficiency associated with any tender not in proper
order;
(f) to follow instructions given by any Co-President, the Chief Executive
Officer, the Chief Financial Officer, any Vice President or the
Secretary of the Company, or such other person or persons as they
shall designate in writing(each a "Designated Officer"), or any other
person designated by any Designated Officer in writing, with respect
to the waiver of any irregularities or deficiencies associated with
any tender;
(g) to hold all valid tenders subject to further instructions from a
Designated Officer, or any person designated by any such Designated
Officer in writing;
(h) 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 the Xxxxx X.
Xxxxxxxx, Executive Vice President and Chief Information Officer of
the Company (facsimile number: 000-000-0000; telephone number 206-624-
2888) and to Xxxxxx X. Xxxxx, Esq. (facsimile number: 000-000-0000;
telephone number 000-000-0000);
(i) to follow and act upon any amendments, modifications or supplements to
these instructions and to the Exchange Offer (including any extension
or termination of the Exchange Offer), any of which may be given (if
orally, to be promptly confirmed in writing) to the Agent by a
Designated Officer or such other person or persons as a Designated
Officer shall designate in writing;
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(j) to return to the presenters, in accordance with the provisions of the
Letter of Transmittal, any Initial Notes that were not received in
proper order and as to which the irregularities or deficiencies were
not cured or waived;
(k) 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
Letter of Transmittal's, as soon as practicable after receipt thereof;
(l) 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 Initial Notes;
(m) to deliver to, or upon the order of, the Company all Initial Notes
received under the Exchange Offer, together with any related
assignment forms and other documents;
(n) to advise the Company with respect to any Initial Notes delivered
subsequent to the Expiration Date and to accept the instructions (if
given orally, to be confirmed in writing) of a Designated Officer with
respect to the disposition of such Notes; and
(o) subject to the other terms and conditions set forth in this Agreement,
to take all other actions reasonable and necessary in the good faith
judgment of the Agent, to effect the foregoing matters.
6. The Agent shall:
(a) have no duties or obligations other than those specifically set forth
herein, in the Letter of Transmittal and in the Prospectus under the
caption "The Exchange Offer";
(b) not be required to refer to any documents for the performance of its
obligations hereunder other than this Agreement, the Letter of
Transmittal and the documents required to be submitted with the Letter
of Transmittal, and under the caption "The Exchange Offer" in the
Prospectus; other than such documents, the Agent will not be
responsible or liable for any terms, directions or information in the
Prospectus or any other document or agreement unless the Agent
specifically agrees thereto in writing;
(c) 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, Letter of Transmittals
or documents prepared by the Company in connection with the Exchange
Offer or (iii) any signatures or endorsements, other than its own;
(d) not be obligated to take any legal action hereunder that might, in its
reasonable judgment, involve any expense or liability, unless it has
been furnished with reasonable indemnity by the Company;
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(e) be able to rely on and shall be protected in acting in good faith on
the written or oral instructions with respect to any matter relating
to its actions as Agent specifically covered by this Agreement, of any
Designated Officer of the Company authorized to give instructions
under paragraph 5(g) or 5(h) above;
(f) be able to rely on and shall be protected in acting in good faith 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;
(g) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person (other than a Designated
Officer) 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;
(h) 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;
(i) not be called on at any time to advise, and shall not advise, any
person delivering an Letter of Transmittal pursuant to the Exchange
Offer as to the wisdom of tendering Initial Notes in the Exchange
Offer or as to the market value or decline or appreciation in market
value of any Notes nor shall the Agent pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
bank or other person or to engage or utilize any person to solicit
tenders;
(j) 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;
(k) 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;
(l) 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
(m) 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 in good faith or in the exercise of the
Agent's best judgment, or any action suffered by the Agent to be taken
or omitted, in good
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faith or in the exercise of the Agent's best
judgment, in reliance upon such assumption.
7. The Agent shall be entitled to compensation as set forth in Exhibit B
attached hereto.
8. (a) 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 the Agent or to
which the Agent may become subject without gross negligence, willful misconduct
or bad faith on the Agent's part by reason of or as a result of the Agent's
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. You shall notify the Company in writing of
the assertion of any claim against you; provided, however, that your failure so
to notify the Company shall not excuse the company from its obligations
hereunder except to the extent such failure to notify shall prejudice or cause
damage to the Company.
(b) 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, shall
assume the defense of any suit brought to enforce any such claim. In the event
that the Company shall assume the defense of any such suit, it shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by the Agent so long as the Company shall retain counsel reasonably satisfactory
to the Agent to defend such suit. The Agent shall not compromise or settle any
such action or claim without the consent of the Company, provided that the
Company shall not be entitled to assume the defense of any action if
representation of the parties by the same legal counsel would, in the reasonable
opinion of counsel for the Agent, be inappropriate due to actual or potential
conflicting interests between the parties.
(c) Without the prior written consent of the Company (which consent shall
not be unreasonably withheld), the Agent will not settle, compromise or consent
to the entry of 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 the Agent
or the Company or any of its controlling persons is an actual or potential party
to such claim, action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Company and its controlling
persons from all liability arising out of such claim, action or proceeding.
9. This Agreement shall be construed and enforced in accordance with the
laws of the State of New York, without regard to conflicts of laws provisions,
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto; provided,
however, that this Agreement may not be assigned by the Agent without the prior
written consent of the Company.
10. Unless otherwise expressly provided herein, all notices, requests,
demands and other communications hereunder shall be in writing, shall be
delivered by hand, facsimile, prepaid
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overnight courier with next business day delivery guaranteed, 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:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Reorganization Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxx & Xxxx PC
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11. 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.
12. 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.
13. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraphs 7 and 8 and any outstanding obligation of the Agent shall survive the
termination of this Agreement.
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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.
THE BANK OF NEW YORK
By:
__________________________________
Name:
Title:
THE XXXXXXXX GROUP, INC.
By:
___________________________________
Name:
Title:
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EXHIBIT A SAMPLE REPORT
Date:
___________________________
Report Number:
__________________
As of Date:
_____________________
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated _____________________ ,
1999, we hereby render the following report:
Principal Amount previously received: _______________________
Principal Amount received today: _______________________
Principal Amount received against
Guaranteed Deliveries: _______________________
Principal Amount withdrawn today: _______________________
Total principal amount received to date _______________________
Recap of principal amount represented by guarantees
----------------------------------------------------
Guarantees previously outstanding: _______________________
Guarantees received today: _______________________
Guarantees settled today: _______________________
Guarantees withdrawn today: _______________________
Guarantees outstanding: _______________________
Total principal amount and
guarantees outstanding: _______________________
Very truly yours,
The BANK OF NEW YORK
By ______________________________
Name:
Title:
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EXHIBIT B
COMPENSATION
For serving as the Exchange Agent pursuant to this Agreement, The Bank of
New York shall receive a fee of $_____________, payable upon commencement of the
Exchange Offer, and its out-of-pocket expenses incurred in connection with
completing its duties pursuant to this Agreement.
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