1
EXHIBIT 99.3
_______________, 1999
FORM OF EXCHANGE AGENT AGREEMENT
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Group
Ladies and Gentlemen:
The X.X. Xxxxxxx Company, Inc., a North Carolina corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange with
the holders thereof (i) up to $150,000,000 of its 10% Senior Notes due 2008,
Series D (the "Exchange Notes") for a like principal amount of its outstanding
10% Senior Notes due 2008, Series B and Series C (the "Outstanding Notes"),
which Exchange Notes have been registered under the Securities Act of 1933, as
amended.
The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a Prospectus (the "Prospectus") dated
_______________, 1999, distributed to record holders of the Outstanding Notes
on or about such date. The Outstanding Notes and the Exchange Notes are
collectively referred to herein as the "Notes." Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to them in the
Prospectus.
The Company hereby appoints First Union National Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to First Union National Bank.
The Exchange Offer is expected to be commenced by the Company on or
about _______________, 1999. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Outstanding Notes to accept the
Exchange Offer and contains certain instructions with respect to (i) the
delivery of certificates for Outstanding Notes tendered in connection
therewith, (ii) the book entry transfer of Notes to the Exchange Agent's
account at The Depository Trust Company (the "Book-Entry Transfer Facility"),
and (iii) other matters relating to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_______________, 1999 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
2
time by giving oral (to be confirmed in writing) or written notice to you no
later than 1:00 p.m., New York City time, on the business day following the
previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Outstanding Notes not
theretofore accepted for exchange, upon the occurrence of any failure of the
conditions of the Exchange Offer specified in the Prospectus under the caption
"The Exchange Offer - Certain Conditions to the Exchange Offer." The Company
will give oral (to be confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Outstanding Notes 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 herein and in the Letter of Transmittal.
2. You will establish an account with respect to the Outstanding
Notes at the Book-Entry Transfer Facility 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 the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Outstanding Notes by causing the Book-Entry
Transfer Facility to transfer such Outstanding Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
You are not required to collect Letters of Transmittal from persons tendering
Notes through the Book-Entry Transfer Facility.
3. You are to examine each of the Letters of Transmittal, certificates
for Outstanding Notes (or confirmations of book-entry transfers into your
account at the Book-Entry Transfer Facility) and any Agent's Message or other
documents delivered or mailed to you by or for holders of the Outstanding Notes
to ascertain whether (i) the Letters of Transmittal and any such other
documents are executed and properly completed in accordance with instructions
set forth therein and (ii) the Outstanding 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 any of the certificates for
Outstanding Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange Offer exists,
you will endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of J. Xxxxxxx Xxxxxxx or any other person
designated in writing by the Company (a "Designated Officer") (such approval,
if given orally, to be confirmed in writing) or any other party designated by
any such Designated Officer in writing, you are authorized to waive any
irregularities in connection with any tender of Outstanding Notes pursuant to
the Exchange Offer.
2
3
5. Tenders of Outstanding 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 Outstanding Notes," and Outstanding
Notes shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein. Notwithstanding the
provisions of this paragraph 5, Outstanding Notes that the Designated Officer
of the Company 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 Outstanding Notes
delivered subsequent to the Expiration Date and accept the Company's
instructions (if given orally, to be confirmed in writing) with respect to the
disposition of such Outstanding Notes.
7. You shall accept tenders:
(a) in cases where the Outstanding 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 such person's authority to so act is
submitted; and
(c) from persons other than the registered holder of Outstanding
Notes provided that customary transfer requirements, including payment
of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Notes where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Outstanding Notes to the Transfer Agent for split-up and
return any untendered Outstanding Notes to the holder (or to 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 the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of the Company's acceptance, promptly after the
Expiration Date, of all Outstanding Notes properly tendered and you, on behalf
of the Company, will exchange such Outstanding Notes for Exchange Notes and
will deliver such Outstanding Notes as directed by the Company. 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
Outstanding Notes tendered promptly after notice (such notices, if given
orally, to be confirmed in writing) of acceptance of said Outstanding Notes by
the Company; provided, however, that in all cases Outstanding Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Outstanding Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees (or an Agent's Message in lieu thereof) and
any other required documents. You shall issue Exchange Notes only in
3
4
denominations of $1,000 or in any integral multiple in excess thereof.
Outstanding Notes may be tendered in whole or in part in integral multiples of
$1,000 in aggregate principal amount.
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, Outstanding Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company shall not be required to exchange any Outstanding
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 Outstanding
Notes tendered shall be given (such notice, if given orally, shall be 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 Outstanding Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer - Certain Conditions to the
Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Outstanding Notes (or effect the appropriate book-entry transfer of
the unaccepted Outstanding Notes), together with any related required documents
and the Letter of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates for reissued Outstanding Notes, unaccepted
Outstanding Notes or Exchange Notes shall be forwarded at the Company's expense
by (a) first-class mail, return receipt requested, under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
nonreceipt or nondelivery of such certificates or (b) registered mail insured
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 solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
14. 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 any of the certificates or the Outstanding Notes represented
thereby deposited with you pursuant to the Exchange Offer, and will
not be required to and will make no representation as to the validity,
sufficiency, value or genuineness of the Exchange Offer including
without limitation the Prospectus, the Letter of Transmittal or the
instructions related thereto;
(b) shall not be obligated to take any action hereunder that might
in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity satisfactory
to you;
4
5
(c) may conclusively rely on and shall be fully 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 conclusively act upon any tender, statement, request,
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 that
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 conclusively rely on and shall be fully protected in
acting upon written or oral instructions from any Designated Officer
of the Company with respect to the Exchange Offer;
(f) shall not advise any person tendering Outstanding Notes
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 Outstanding Notes; and
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the advice or
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by you hereunder in good faith and in accordance with such
advice or written opinion of such counsel.
15. You shall take such action as may from time to time be requested
by any Designated Officer of the Company (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery, 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 shall 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 J. Xxxxxxx Xxxxxxx, Senior Vice
President, General Counsel and Secretary of the Company and Xxxxxxx X. Xxxx of
Xxxxxx, Xxxxx & Xxxxx LLP, and such other person or persons as the Company may
request, daily (and more frequently during the week immediately preceding the
Expiration Date, if reasonably requested by the Company or less frequently
prior to such time upon your reasonable request) up to and including the
Expiration Date, as to the principal amount of the Outstanding Notes that 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 and items covered
by Notices of Guaranteed Delivery. In addition, you will also inform, and
cooperate in making available to, the Company or any such other person or
persons as the
5
6
Company reasonably requests from time to time prior to the Expiration Date of
such other information as they or such person or persons reasonably request.
Such cooperation shall include, without limitation, the granting by you to the
Company and such person or persons as the Company may reasonably 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.
17. 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 Company at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of One Thousand Five Hundred Dollars ($1,500) plus
Twenty-Five Dollars ($25) per each holder that exchanges Outstanding Notes for
Exchange Notes in the Exchange Offer, and reimbursement of reasonable
out-of-pocket expenses incurred in connection with the Exchange Offer.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to the
extent necessary to perform 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 rights, duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
20. (a) The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost, tax (other
than any income tax), claim or expense, including reasonable attorneys' fees
and disbursements, arising out of or in connection with any action taken or
omitted to be taken by the Exchange Agent in connection with its acceptance or
performance of it duties under the Agreement and the documents related thereto,
including without limitation, 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 transfer of Outstanding Notes reasonably
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Outstanding Notes;
provided, however, that the Company 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. You shall notify the Company in writing of the assertion of any claim
against you; provided however, that your failure so to notify 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. The Company shall be
entitled to participate at its own expense in the
6
7
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 you so long as the Company 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 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 Exchange Agent, be inappropriate due to actual or potential conflicting
interests between the parties. This indemnification shall survive the release,
discharge, termination and/or satisfaction of this Agreement.
(b) You agree that, without the prior written consent of the
Company (which consent shall not be unreasonably withheld), you 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 you 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 controlling persons from all liability arising out of such claim,
action or proceeding.
21. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
North Carolina 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.
22. All communications, including notices, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if (i) delivered personally with receipt acknowledged, (ii) sent by registered
or certified mail, return receipt requested, (iii) transmitted by facsimile
(which shall be confirmed by telephone and by a writing sent by registered or
certified mail on the business day that such facsimile is sent), or (iv) sent
by recognized overnight courier for next business day delivery, addressed to
the parties at the addresses or facsimile numbers as any party shall hereafter
specify by communication to the other parties in the manner provided herein:
If to the Company:
The X.X. Xxxxxxx Company, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax No.: (000) 000-0000
Attn: J. Xxxxxxx Xxxxxxx
Senior Vice President/Strategic Planning, General Counsel
and Secretary
with a copy to:
7
8
Xxxxxx, Xxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
8
9
If to the Exchange Agent:
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
No.: (704) 383-7316
Attention: Xxxxxxx Xxxxxxxx
23. 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.
24. 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.
25. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraph 18 and 20 and any outstanding obligation of the Exchange
Agent shall survive the termination of this Agreement.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
THE X.X. XXXXXXX COMPANY, INC.
By:
-----------------------------------
J. Xxxxxxx Xxxxxxx
Senior Vice President,
General Counsel and Secretary
Accepted as of the date first above written:
FIRST UNION NATIONAL BANK, as Exchange Agent
By:
------------------------------------
Name:
Title:
9
