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EXHIBIT 99.3
SYNTHETIC INDUSTRIES, INC.
EXCHANGE AGENT AGREEMENT
DATED AS XX XXXXX , 0000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Pursuant to the provision of the Offer (the "Exchange Offer") for all of
Synthetic Industries, Inc.'s (the "Company") outstanding 9 1/4% Senior
Subordinated Notes due 2007 (Series A) (the "Initial Notes") in exchange for
9 1/4% Senior Subordinated Notes due 2007 (Series B) (the "Exchange Notes"), all
of the Company's issued and outstanding Initial Notes accepted for tender of
exchange (the "Exchange") prior to 5:00 p.m., New York City time, on
, 1997 unless extended, for the Exchange Notes will be exchanged pursuant to
the terms and conditions of the Exchange Offer. The Exchange Offer is being made
pursuant to a prospectus (the "Prospectus") included in the Company's
registration statement on Form S-4 (File No. 333- ), as amended (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "SEC"). The term "Expiration Date" shall mean the date on which the
Exchange Offer, as it may be extended in accordance with the terms and
conditions set forth in the Prospectus, shall expire. Upon receipt and execution
of this letter and confirmation of the arrangements herein set forth, United
States Trust Company of New York will act as the Exchange Agent for the Exchange
(the "Exchange Agent").
Definitive copies of the form of the letter of transmittal, including the
related notice of guaranteed delivery, the form of letter to brokers, the form
of letter to clients and the taxpayer identification form (collectively, the
"Letters of Transmittal"), to be used by the holders of the Initial Notes (the
"Holders") to surrender their Initial Notes in order to receive the Exchange
Notes pursuant to the Exchange have been provided to you.
The Company hereby appoints you to act as Exchange Agent in connection with
the Exchange. In carrying out your duties as Exchange Agent, you are to act in
accordance with the following:
1. You are to mail the Prospectus and the Letters of Transmittal to
all of the Holders on the day that you are notified by the Company that the
Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make
subsequent mailings thereof to any persons who become Holders prior to the
Expiration Date, and any persons as may from time to time be requested by
the Company. All mailings pursuant to this Section shall be by first class
mail, postage prepaid, unless otherwise specified. You shall also 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. All other requests
for information relating to the Exchange Offer shall be directed to the
Company, Attention: , telephone (000) 000-0000.
2. You are to examine the Letter of Transmittal and the Initial Notes
and other documents delivered or mailed to you, by or for the Holders,
prior to the Expiration Date, to ascertain whether (i) the Letters of
Transmittal are properly executed and completed in accordance with the
instructions set forth therein, (ii) the Initial Notes are in proper form
for transfer, and (iii) all other documents submitted to you are in proper
form. In each case where a Letter of Transmittal or other document has been
improperly executed or completed or, for any other reason, is not in proper
form, or some other irregularity exists, you are authorized to endeavor to
take such action as you consider appropriate to notify the tenderer of such
irregularity and as to the appropriate means of resolving the same.
Determination of
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questions as to the proper completion or execution of the Letters of
Transmittal, or as to the proper form for transfer of the Initial Notes or
as to any other irregularity in connection with the submission of Letters
of Transmittal and/or Initial Notes and other documents in connection with
the Exchange, shall be made by you together with officers of, or counsel
for, the Company and with representatives of the Company at their written
instructions or oral direction confirmed by facsimile. Any determination
made by the Company on such questions shall be final and binding. As
Exchange Agent, you are entitled to rely on any determination by the
Company as described above and shall be fully protected and indemnified in
such reliance.
3. At the written request of the Company or its counsel, Xxxxxxx &
Xxxxx L.L.P., you shall notify tendering holders of Initial Notes in the
event of any rescission or modification of the Exchange Offer. In the event
of any such recission, you will return all tendered Initial Notes to the
persons entitled thereto, at the request of the Company or its counsel,
Xxxxxxx & Xxxxx L.L.P.
4. Tender of the Initial Notes may be made only as set forth in the
Letter of Transmittal. Notwithstanding the foregoing, tenders which the
Company shall approve in writing as having been properly tendered shall be
considered to be properly tendered. Letters of Transmittal shall be
recorded by you as to the date and time of receipt and shall be preserved
and retained by you. Exchange Notes are to be issued in exchange for the
Initial Notes pursuant to the Exchange only against deposit with you of the
Initial Notes, together with executed Letters of Transmittal and any other
documents required by the Exchange Offer on each business day from the
execution hereof up to the Expiration Date.
5. Upon the oral and written request of the Company (with written
confirmation of such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to (i) Xxxxxx
Xxxxxxxxx, Chief Financial Officer (telephone (000) 000-0000) and (ii)
Xxxxxxx & Xxxxx L.L.P. (Attention: Xxxx Xxxxxxxxx, Esq.), counsel to the
Company (telephone (000) 000-0000), or such other persons as the Company
may reasonably request, the aggregate number of the Initial Notes tendered
to you and the number of the Initial Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral
request made from time to time (with written confirmation of such request
thereafter) prior to the Expiration Date, of such information as they or
any of them may reasonably request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of Exchange Notes to be issued in exchange for accepted Initial
Notes will be made by you promptly after acceptance of the tendered Initial
Notes. You will hold all items which are deposited for tender with you
after 5:00 p.m., New York City time, on the Expiration Date pending further
instructions from an officer of the Company.
7. If any Holder shall report to you that such Holder's failure to
surrender Initial Notes registered in such Holder's name is due to the
loss, misplacement or destruction of a certificate or certificates, you
shall request such Holder (i) to furnish to the Exchange Agent an affidavit
of loss and, if required by the Company, a corporate bond of indemnity in
an amount and evidenced by such certificate or certificates of a surety, as
may be satisfactory to you and the Company, and (ii) to execute and deliver
an agreement to indemnify the Company and you in such form as is acceptable
to you and the Company. The obligees to be named in each such indemnity
bond shall include the Company and you. You shall report to the Company the
names of all Holders who claim that their Initial Notes have been lost,
misplaced or destroyed and the principal amount of such Initial Notes.
8. As soon as practicable after you mail or deliver to a Holder the
Exchange Notes that such Holder may be entitled to receive, you shall
arrange for cancellation of the Initial Notes submitted to you. Such
Initial Notes shall be forwarded to United States Trust Company of New
York, as Trustee (the "Trustee"), under the Indenture, dated as of February
11, 1997, governing the Initial Notes, for cancellation and retirement as
you are instructed by the Company (or a representative designated by the
Company).
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9. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as
Exhibit A. The Company also will reimburse you for your reasonable
out-of-pocket expenses (including but not limited to reasonable counsel
fees not previously paid to you as set forth in Exhibit A) in connection
with your services promptly after submission to the Company of itemized
statements.
10. 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.
11. As the Exchange Agent hereunder you:
(a) shall perform the duties and obligations as Exchange Agent with
due care and shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or Letters of
Transmittal or as may subsequently be requested in writing of you by the
Company and agreed to by you in writing with respect to the Exchange
Offer;
(b) will be regarded as making no representations and having no
responsibilities except to act in good faith and in a manner that is not
negligent as to the validity, accuracy, sufficiency, value or
genuineness of any Initial Notes deposited with you pursuant to the
Exchange Offer or any Exchange Notes, any Letters of Transmittal or
other documents prepared by the Company in connection with the Exchange
Offer or any signatures or endorsements other than your own, 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;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense not contemplated
hereby or liability unless you shall have been furnished with reasonable
indemnity;
(d) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, facsimile
transmission, telex, telegram or other document, or any 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 rely on and shall be protected in acting upon written or
oral instructions with respect to any matter relating to your
obligations as Exchange Agent specifically covered by this Agreement, or
supplementing or qualifying any such action of the President and Chief
Executive Officer, the Chief Financial Officer or any Vice President of
the Company or such other person or persons designated by the Company;
(f) may consult with counsel satisfactory to you (including counsel
for the Company) and any action taken by you in accordance with the
advice and 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 opinion of such counsel;
(g) shall arrange for insurance protecting the Company and yourself
against any liability arising out of the loss, destruction or
non-delivery of checks or certificates for any cause; and
(h) shall not at any time advise any person as to the advisability
of the Exchange, as to the market value or decline or appreciation in
market value of any Initial Notes or Exchange Notes or as to any other
financial or legal aspect of the Exchange Offer or any transaction
related thereto.
12. The Company covenants and agrees to reimburse, indemnify, and to
hold you harmless against any costs, expenses (including reasonable fees of
your legal counsel), losses or damages, which may be paid, incurred or
suffered by you or to which you may become subject, arising from or out of,
directly or indirectly, any claim or liability resulting from your
obligations as Exchange Agent as specified in this Agreement or any
amendment, modification, or supplement hereto; provided, that such covenant
and agreement does not extend to, and you shall not be indemnified with
respect to, such costs, expenses,
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losses and damages incurred or suffered by you as a result of, or arising
out of, your negligence, misconduct, bad faith, or willful failure to
perform your obligations as Exchange Agent. In no case will the Company be
liable under this indemnity with respect to any claim against you unless,
promptly after you have received any written assertion of a claim or have
been served with summons or other first legal process giving information as
to the nature and basis of the claim, you notify the Company, by letter or
by cable or telex or facsimile confirmed by letter, of the written
assertion of such claim against you or of any action commenced against you
or of the service of any summons on you, or other first legal process
giving information as to the nature and basis of the claim, but failure so
to notify the Company shall not relieve the Company from any liability
which it may have otherwise than on account of this indemnity. The Company
will be entitled to participate at its own expense in the defense of such
claim or liability. If the Company so elects at any time after receipt of
such notice and agrees in writing that such claim is a claim for which you
are entitled to be indemnified and held harmless hereunder or if you in
such notice request and the Company agrees, the Company will assume the
defense of any suit brought to enforce any such claim. In the event the
Company assumes the defense of any such suit, the Company may select
counsel of its own choosing for such purpose who is recognized as having
expertise in defending against such proceedings, and the Company will not
be liable for the fees and expenses of any additional counsel thereafter
retained by you, unless in your judgment, which must be reasonable, it is
advisable for you to be represented by separate counsel because your
interest may conflict with the interests of the Company.
13. This Agreement and your appointment as the Exchange Agent 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 respective assigns of the parties
hereto. No other person shall acquire or have any rights under or by virtue
of this Agreement.
14. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement and the Letters of Transmittal, as
they may from time to time be supplemented or amended, shall be resolved in
favor of the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
15. 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.
16. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability or the
remaining provisions shall not in any way be affected or impaired thereby.
17. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Trustee any certificates for Initial Notes, funds or
property then held by you as Exchange Agent under this Agreement.
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If the foregoing is in accordance with your understanding, would you please
indicate your agreement by signing and returning the enclosed copy of this
Agreement to the Company.
Very truly yours,
SYNTHETIC INDUSTRIES, INC.
By:
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
Agreed to this day of
, 0000
XXXXXX XXXXXX TRUST COMPANY OF NEW
YORK
By:
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Trust Officer
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EXHIBIT A
UNITED STATES TRUST COMPANY OF NEW YORK
EXCHANGE OFFER:
Exchange Agent Fee $4,500.00
COUNSEL FEE:
Counsel services related to the examination and review of the documentation
in connection with the Exchange Offer are in addition to the foregoing.
EXPENSES:
Out-of-pocket expenses for postage, stationery, etc. are in addition to the
foregoing.
EXTRAORDINARY SERVICES:
Extraordinary services or those not specifically contemplated within the
foregoing proposal may be subject to additional charges.
