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Exhibit 99.2
EXCHANGE AGENT AGREEMENT
____________, 0000
Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Xxxxxxx-Xxxxxxxx Company (the "Issuer") proposes to make an offer
(the "Exchange Offer") to exchange its outstanding 7.375% Debentures Due 2027
(the "Old 2027 Debentures"), of which an aggregate of $150,000,000 in principal
amount is outstanding as of the date hereof, for an equal principal amount of
newly issued 7.375% Debentures Due 2027 (the "New 2027 Debentures") which have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), and to exchange its outstanding 7.45% Debentures Due 2097 (the "Old 2097
Debentures"), of which an aggregate of $150,000,000 in principal amount is
outstanding as of the date hereof, for an equal principal amount of newly issued
7.45% Debentures Due 2097 (the "New 2097 Debentures") which have been registered
under the Securities Act. The Old 2027 Debentures and the Old 2097 Debentures
are collectively referred to herein as the "Old Debentures" and the New 2027
Debentures and the New 2097 Debentures are collectively referred to herein as
the "New Debentures." The Old Debentures and New Debentures are collectively
referred to herein as the "Debentures." The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated April __,
1997 (the "Prospectus"), proposed to be distributed to all record holders of the
Old Debentures and beneficial interests therein. Terms used and not defined
herein have the meanings set forth in the Prospectus or the Letter of
Transmittal (except that the term "Old Debentures" shall include beneficial
interests therein, held by or through participants in The Depository Trust
Company (the "Book-Entry Transfer Facility") (Book-Entry Interests") and Old
Debentures held in definitive registered form ("Definitive Registered
Debentures")).
The Issuer hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
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The Exchange Offer is expected to be commenced by the Issuer on or
about _______, 1997. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Debentures to accept the Exchange Offer, and
contains certain instructions with respect to the delivery of Book-Entry
Interests and Definitive Registered Debentures.
The Exchange Offer shall expire at 5:00 p.m., New York City time,
____________, 1997 or on such later date or time to which the Issuer may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Issuer 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 Issuer expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Debentures not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the section "Certain
Conditions to the Exchange Offers." The Issuer 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
Offers," as specifically set forth in the Letter of Transmittal, and as
specifically set forth herein and such duties which are necessarily incidental
thereto; PROVIDED, HOWEVER, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Debentures at
the Book-Entry Transfer Facility for purposes of the Exchange Offer within two
business days after the date of the Prospectus or, if you already have
established an account with the Book-Entry Transfer Facility suitable for the
Exchange Offer, you will identify such preexisting account to be used in the
Exchange Offer, and any financial institution that is a participant in the
Book-Entry
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Transfer Facility's systems may make book-entry delivery of the Old Debentures
by causing the Book-Entry Transfer Facility to transfer such Old Debentures into
your account in accordance with the Book-Entry Transfer Facility's procedure for
such transfer.
3. You are to examine each of the Letters of Transmittal, each of the
certificates for Old Debentures in the case of Definitive Registered Debentures,
or, in the case of Book-Entry Interests, confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility via the Book-Entry
Transfer Facility's Automated Tender Offer Program and any accompanying Agent's
Message and any other documents delivered or mailed to you by or for holders of
the Old Debentures to ascertain whether: (i) the Letters of Transmittal and any
such other documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Debentures have otherwise been
properly tendered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed, any of the certificates for
Old Debentures 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 Chief Financial Officer of the Company, the
Company Secretary or the Vice President and Assistant Treasurer of the Company
(such approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are authorized to waive any
irregularities in connection with any tender of Old Debentures pursuant to the
Exchange Offer.
5. Tenders of Old Debentures may be made only as set forth in the
section of the Prospectus captioned "Procedures for Tendering Old Debentures" or
in the Letter of Transmittal, and Old Debentures 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, Old Debentures
which the Chief Financial Officer of the Company, the Company Secretary or the
Vice President and Assistant Treasurer of the Company or any other party
designated by such an officer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such
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approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Debentures
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Debentures.
7. You shall accept tenders:
a. in cases where the Old Debentures 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 to so
act is submitted; and
c. from persons other than the registered holder of Old Debentures
provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Issuer will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Debentures properly tendered; and you, on behalf of the Issuer, will exchange
such Old Debentures for New Debentures and cause such Old Debentures to be
canceled. Delivery of New Debentures will be made on behalf of the Issuer by you
at the rate of $1,000 principal amount of New Debentures for each $1,000
principal amount of the Old Debentures tendered promptly after notice (such
notice if given orally, to be confirmed in writing) of acceptance of said Old
Debentures by the Issuer; PROVIDED, HOWEVER, that in all cases, Old Debentures
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of properly endorsed Definitive Registered Debentures or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility, or a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees (or in lieu thereof an
Agent's Message, where applicable) and any other required document. You shall
issue New Debentures only in denominations of $1,000 or any integral multiple
thereof.
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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, Old Debentures tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Issuer shall not be required to exchange any Old Debentures
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuer not to exchange any Old Debentures tendered
shall be given (such notice, if given orally, shall be confirmed in writing) by
the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Old Debentures tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "Certain Conditions to the Exchange Offers" or otherwise, you shall
as soon as practicable after the expiration or termination of the Exchange Offer
effect the appropriate book-entry transfer of the unaccepted Old Debentures, and
return any related required documents and the Letters of Transmittal relating
thereto that are in your possession, to the persons who deposited them.
12. You are not authorized to pay or offer to pay any concessions,
commission or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
a. will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of Old Debentures, and will not be required to and
will make no representations as to the validity, value or
genuineness of the Exchange Offer; PROVIDED, HOWEVER, that in no
way will your general duty to act in good faith be discharged by
the foregoing;
b. 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;
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c. shall not be liable to the Issuer for any action taken or omitted
by you, or any action suffered by you to be taken or omitted,
without negligence, misconduct or bad faith on your part, by
reason of or as a result of the administration of your duties
hereunder in accordance with the terms and conditions of this
Agreement or by reason of your compliance with the instructions
set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and
shall be protected in acting in good faith in reliance upon any
certificate, instrument, opinion, notice, letter, facsimile 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;
d. may reasonably act upon any tender, statement, request, comment,
agreement 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 reasonably
believe to be genuine or to have been signed or represented by a
proper person or persons;
e. may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Issuer with respect to the
Exchange Offer;
f. shall not advise any person tendering Old Debentures pursuant to
the Exchange Offer as to the wisdom of making such tender or as
to the market value or decline or appreciation in market value of
any Old Debentures; and
g. may consult with your counsel and the written opinion of such
counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by you
hereunder in good faith and in accordance with such written
opinion of such counsel.
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14. You shall take such action as may from time to time be requested by
the Issuer 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 or such other forms as may be approved from time
to time by the Issuer 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 Issuer will furnish you with
copies of such documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to:
The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Corporate Secretary
15. You shall advise by facsimile transmission or telephone, and
promptly thereafter, confirm in writing to:
Xxxxxxx Xxxxxxx
The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and such other person or persons as the Company may request, daily, and more
frequently if reasonably requested, up to and including the Expiration Date, as
to the principal amount of the Old Debentures which have been tendered pursuant
to the Exchange Offer and the items received by you pursuant to 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 Issuer or any such other person or persons as the
Issuer requests from time to time prior to the Expiration Date of such other
information as they, it or he reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Issuer and such persons
as the Issuer 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 Issuer shall have received information in sufficient
detail to enable it to decide
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whether to extend the Exchange Offer. You shall prepare a list of persons who
failed to tender or whose tenders were not accepted and the aggregate principal
amount of Old Debentures not tendered or Old Debentures not accepted and deliver
said list to the Issuer at least seven days prior to the Expiration Date. You
shall also prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Debentures tendered and the aggregate
principal amount of Old Debentures accepted and deliver said list to the Issuer.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and 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. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Issuer.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of [ ] and you shall be entitled to reimbursement of
your expenses (including fees and expenses of your counsel, which fees are
expected under normal circumstances to be not in excess [ ]) incurred in
the connection with the Exchange Offer.
18. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent that they relate to your duties hereunder. 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.
19. The Issuer agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees, arising out or in connection with the
acceptance or administration of your duties hereunder, including, without
limitation, in connection with any act, omission, delay or refusal made by you
in reasonable 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
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transfer of Old Debentures 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 Old Debentures; PROVIDED, HOWEVER, that the Issuer shall
not be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your negligence, willful breach of this
Agreement, willful misconduct or bad faith. In no case shall the Issuer be
liable under this indemnity with respect to any claim against you unless the
Issuer shall be notified by you, by letter or cable or by facsimile 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 commencement of action. The Issuer shall be entitled to participate
at its own expense in the defense of any such claim or other action, and, if the
Issuer so elects, the Issuer shall assume the defense of any suit brought to
enforce any such claim. In the event that the Issuer shall assume the defense of
any such suit, the Issuer shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Issuer shall retain
counsel reasonably satisfactory to you to defend such suit. You shall not
compromise or settle any such action or claim without the consent of the Issuer.
20. 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, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
21. 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
constitute one and the same agreement.
22. 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.
23. 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
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of the party to be charged. This Agreement may not be modified orally.
24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Issuer:
The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxx. X.X.
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Vice President and
Assistant Treasurer
with a copy to:
The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxx. X.X.
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: X.X. Xxxxxxxx, Corporate Secretary
and with a copy to:
Xxxxxxxxx Xxxxxxx XxXxx, Esq.
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-000-0000
Attention: Xxxxxxxx Xxxxxxxx
25. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 17 and 19 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the Issuer
any funds or property (including, without limitation, Letters of Transmittal and
any other documents
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relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement except as provided in Section 16.
26. 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.
THE XXXXXXX-XXXXXXXX COMPANY
By:
Name:
Title:
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By: ___________________________
Name:
Title:
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