EXHIBIT 10.1
EXCHANGE AGENCY AGREEMENT
THIS AGREEMENT is entered into as of March 28, 1997, between IBJ Xxxxxxxx
Bank & Trust Company, a banking corporation organized under the laws of the
State of New York, as Exchange Agent (the "Agent"), and Gorges Quik-to-Fix
Foods, Inc., a corporation organized under the laws of the State of Delaware
(the "Issuer").
The Issuer has heretofore issued $100,000,000 in aggregate principal amount
of their 11 1/2% Senior Subordinated Notes Due 2006 (the "Original Notes"). The
Issuer now proposes to offer to exchange $1,000 principal amount of their
11 1/2% Senior Subordinated Notes Due 2006, Series B (the "New Notes") for each
$1,000 principal amount of the outstanding Original Notes. Such offer to
exchange the New Notes for the outstanding Original Notes (the "Exchange Offer")
shall be made upon the terms and subject to the conditions set forth in a
Prospectus of the Issuer dated March 28, 1997 (the "Exchange Offer Prospectus")
and a related Letter of Transmittal (the "L/T") in the form attached hereto. The
effective date of the Exchange Offer shall be March 28, 1997, and the
termination date of the Exchange Offer shall be April 28, 1997.
Subject to the provisions hereof, the Issuer hereby appoints and the Agent
hereby accepts, the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Original Notes
in accordance with the provisions of the L/T and with the terms and conditions
set forth herein.
The Agent has received the following documents in connection with its
appointment:
(1) L/T
(2) Specimen Original Note
The Agent shall receive from IBJ Xxxxxxxx Bank & Trust Company, in its
capacity as the registrar for the Original Notes (the "Registrar") no later than
5:00 p.m., New York City Time, on the effective date (as specified above) a list
of all holders of Original Notes eligible to participate in the Exchange Offer,
which list shall include the principal amount of Original Notes owned of record
by each such holder. The Registrar will also promptly notify the Agent of any
changes in the registered ownership of the Original Notes during the Exchange
Offer.
The Agent is authorized and hereby agrees to act as follows:
(a) to receive all tenders of Original Notes made pursuant to the L/T and
stamp the L/T with the day, month and approximate time of receipt;
(b) to examine each L/T and Original Note received to determine that all
requirements for a valid tender set forth in the L/T have been met;
(c) to take such actions necessary and appropriate to correct any
irregularity or deficiency associated with any tender which does not
meet the requirements in the L/T;
(d) to follow instructions of A. Xxxxx Xxxxxx, Chief Financial Officer of
the Company, with respect to the waiver of any irregularities or
deficiencies associated with any tender;
(e) to render a written report, in the form of Exhibit A attached hereto,
on each business day that Original Notes are tendered during the
Exchange Offer and promptly confirm, by telephone, the information
contained therein to A. Xxxxx Xxxxxx (each such report shall be
delivered by facsimile (No. 972/907-7658) followed by mailing of the
original);
(f) to return to the presenters, in accordance with the provisions of the
L/T, any Original Notes that were not received in proper order and as
to which irregularities or deficiencies were not cured or waived;
(g) to deliver by First Class Mail, postage prepaid, the consideration to
which the presenters are entitled, at the addresses specified in the
L/Ts as soon as practicable after the receipt thereof;
(h) to determine that an endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other requirements
are fulfilled in connection with any request for issuance of the
consideration in a name other than that of the registered owner of the
Original Notes;
(i) to deliver to the Registrar all certificates received under the
Exchange Offer, together with any related assignment forms and other
documents; and
(j) to follow and act upon any written amendment, modification or
supplement to this Agreement, any of which may be given to the
Authority by the designated officer of the Company or such other as it
may designate in writing.
The Agent shall:
(a) have no duties or obligations under this Agreement other than those
specifically set forth herein;
(b) not be required to refer to any documents for the performance of its
obligations hereunder other than this Agreement, the L/T and the
documents required to be submitted with the L/T; except to the extent
set forth in such documents, the Agent will not be responsible or
liable for any
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directions or information in the Exchange Offer prospectus or any
other document unless the Agent specifically agrees thereto in
writing;
(c) not be required to act on the directions of any person unless the
Company provides a corporate resolution to the Agent or other evidence
satisfactory to the Agent of the authority of such person;
(d) 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) the Exchange Offer Prospectus, (iii) any
Original Notes, L/Ts or documents prepared by the Company in
connection with the Exchange Offer or (iv) any signatures or
endorsements, other than its own;
(e) not be obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been
furnished with reasonable indemnity by the Issuers;
(f) be able to rely on and shall be protected in acting on the written or
oral instructions with respect to any matter relating to its actions
as Agent specifically covered by this Agreement, of any officer of the
Company authorized to give instructions;
(g) be able to rely on and shall be protected in acting 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;
(h) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person 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;
(i) 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;
(j) not be called on at any time to advise, and shall not advise, any
person delivering an L/T pursuant to the Exchange Offer as to the
value of the consideration to be received;
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(k) 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;
(1) 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;
(m) 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;
(n) 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, or any action suffered by the Agent to be
taken or omitted, in good faith or in the exercise of the Agent's best
judgment, in reliance upon such assumption; and
(o) have no liability whatsoever in connection with Original Notes
tendered to it which may have stops placed against them or in
connection with the payment made against stopped certificates unless
it is furnished with a stop list from the Registrar.
The Agent shall be entitled to compensation as set forth in Exhibit B
attached hereto.
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 costs of staff
counsel) that may be paid or incurred or suffered by it or to which it may
become subject without gross negligence, willful misconduct or bad faith on its
part by reason of or as a result of its 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.
This Agreement shall be construed and enforced in accordance with the laws
of the State of New York and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of the parties
hereto.
Unless otherwise expressly provided herein, all notices, requests, demands
and other communications hereunder shall be in writing, shall be delivered by
hand or by First
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Class Mail, postage prepaid, shall be deemed given when received and shall be
addressed to the Agent and the Issuers 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,
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx. Xxx Xxxx 00000
Attention: Corporate Agency Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
Gorges/Quik-to-Fix Foods, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: A. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
IBJ XXXXXXXX BANK & TRUST COMPANY
By: [Signature Not Eligible]
-----------------------------------------
Its Assistant Vice President
------------------------------------
GORGES/QUIK-TO-FIX FOODS, INC.
By: /s/ J.Xxxxx Xxxxxxx
-----------------------------------------
Its CEO
------------------------------------
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EXHIBIT A
SAMPLE REPORT LETTER
Date: ____________________________________________
Report Number: ____________________________________________
As of Date: ____________________________________________
Gorges/Quik-to-Fix Foods, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: A. Xxxxx Xxxxxx
Re: Exchange Offer of 11 1/2% Senior Subordinated Notes due 2006, Series B
for 11 1/2% Senior Subordinated Notes due 2006, Series A (the "Offer")
Gentlemen:
As Exchange Agent for the above Offer dated __________________, we hereby
render the following report:
Original Notes previously received: __________________________________
Original Notes received today: __________________________________
Total Original Notes received to date: __________________________________
Very truly yours,
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EXHIBIT B
November 12, 1996
Xxxxx X. Xxxxx
Xxxxxx & Bird
One Atlanta Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
RE: $100,000,000 Gorges/Quik-to-Fix Foods, Inc. Senior Subordinated Notes Due
2006
Dear Xxxxx:
Thank you for your interest in having IBJ Xxxxxxxx Bank & Trust Company serve as
Trustee, Registrar, Paying Agent and Exchange Agent for the above captioned
issue. I am pleased to submit, herein, our proposal for your consideration.
We understand the Company intends to issue approximately $100 million principal
amount of Notes due 2006 under Rule 144A. The Notes will be DTC eligible and pay
taxable interest semiannually in arrears. The Notes will be issued in connection
with a LBO transaction by Xxxxxx Green & Wahlen (an Atlanta-based buyout firm)
and Tyson Foods (the seller). NationsBank, through its appropriate entities,
will be providing senior debt financing and underwriting the Notes.
Based on this understanding our fees are as follows:
a) $4,500 Initial Acceptance Fee payable at closing for reviewing all
related documents and setting up the Trust Accounts.
b) $4,500 Annual Trustee Administration Fee payable in advance at closing
and on each anniversary date thereafter for as long as any Notes remain
outstanding.
c) $2,500 Exchange Agent Administration Fee payable in advance upon the
filing of the registration.
Additionally, attached please find a copy of our Bond Registrar & Paying Agency
Fee Schedule.
As is our customary practice, legal fees, out-of-pocket expenses and
disbursements are not included in the above mentioned fees. These expenses will
be billed at closing. While we expect the issue to proceed to a successful
closing, you should understand that if the deal
is postponed or canceled, we would expect payment of our Initial Acceptance Fee
and expenses, including those costs incurred by the Trustee Counsel.
In addition, this proposal is based on our current understanding of the
transaction and subject to our review of the indenture and related documents.
The proposal is also contingent upon your acceptance of our reasonable comments
regarding provisions related to the duties of IBJ Xxxxxxxx. Should the duties
and responsibilities of IBJ Xxxxxxxx significantly differ from our present
understanding, we reserve the right to amend this proposal and adjust our fees
accordingly.
The Trustee may be called upon to perform services not covered under this
proposal. These extraordinary services may be partially classified as releases,
unusual studies, considerations and actions with respect to the Agreement
provisions, the preparation of special reports which the Trustee must provide to
the holders, default situations or any services which involve the Trustee in any
unusual activity. Fees for such services will be determined by an appraisal of
the services involved.
Please indicate your acceptance of this proposal by having the appropriate
person sign and return the enclosed copy of this letter to my attention. If you
have any questions concerning this proposal, please feel free to contact me or
my colleague, Xxx Xxxxxx, Vice President. Max can be reached by telephone at
(000) 000-0000.
We look forward to working with you on a successful closing.
Sincerely,
/s/ XXXXXXX X. XXXX
AGREED TO
By: /s/ XXXXX X. X'XXXXXXX
--------------------------------------------
Company: Gorges/QUIK-to-Fix Foods, Inc.
Name: Xxxxx X. X'Xxxxxxx
Title: President
DATE: November 13, 1996
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