EXHIBIT 99.6
_______, 1998
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Healthcare Corporation (the "Company") proposes to
make an offer (the "Exchange Offer") to exchange $350,000,000 aggregate
principal amount of its 7-5/8% Senior Notes due 2008 (the "Old Securities")
for its 7-5/8% Series B Senior Notes due 2008 (the "New Securities"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated September _____, 1998 (the "Prospectus"),
proposed to be distributed to all record holders of the Old Securities. The
Old Securities and the New Securities are collectively referred to herein as
the "Securities".
The Company hereby appoints The Bank of New York to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the
Company on or about _______, 1998. The Letter of Transmittal accompanying the
Prospectus (or in the case of book entry securities, the ATOP system) is to
be used by the holders of the Old Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old
Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City
time, on _____________, 1998 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 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 Company expressly reserves the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old
Securities not theretofore accepted for exchange, upon the occurrence of any
of the events in the Prospectus under the caption "The Exchange Offer --
Certain Conditions to the
Offer." The Company 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 Offer"] or as specifically set forth herein; 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
Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after
the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Securities by causing the Book-Entry Transfer Facility to
transfer such Old Securities 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
and certificates for Old Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Old Securities
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 Securities 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 Old Securities 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 President, Senior Vice
President, Executive Vice President, or any Vice President 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 Securities pursuant
to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned
["The Exchange Offer -- Procedures
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for Tendering Old Securities"], and Old Securities 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
Securities which the President, Senior Vice President, Executive Vice
President, or any Vice President 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 Old
Securities received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities 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 so to act is submitted; and
(c) from persons other than the registered holder of Old
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Securities to the transfer agent for split-up and return
any untendered Old Securities to the holder (or 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 of the conditions to
the Exchange Offer, the Company will notify you (such notice, if given
orally, to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Securities properly tendered and you, on behalf
of the Company, will exchange such Old Securities for New Securities and
cause such Old Securities to be cancelled. Delivery of New Securities will be
made on behalf of the Company by you at the rate of $1,000 principal amount
of New Securities for each $1,000 principal amount of the corresponding
series of Old Securities tendered promptly after notice (such notice if
given orally, to be confirmed in writing) of acceptance of said Old
Securities by the Company; provided, however, that in all cases, Old
Securities tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of
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certificates for such Old Securities (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 and any other required documents. You shall
issue New Securities only in denominations of $1,000 or any integral
multiple thereof.
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 Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old
Securities 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 Old
Securities tendered shall be given (and 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 Old Securities 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 Old Securities (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited
them.
12. All certificates for reissued Old Securities, unaccepted
Old Securities or for New Securities shall be forwarded by first-class mail.
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) shall have no duties or obligations other
than those specifically set forth herein or as may be subsequently agreed to
in writing by you and the Company;
(b) 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 Old Securities represented
thereby deposited with you pursuant to the Exchange Offer, and will not be
required to and
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will make no representation as to the validity, value or genuineness of the
Exchange Offer;
(c) 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;
(d) may reasonably rely on and shall be protected
in acting in reliance upon any certificate, instrument, opinion, notice,
letter, telegram 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;
(e) may reasonably act upon any tender,
statement, request, comment, 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, which you shall in good faith believe to be genuine and to
have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting
upon written or oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to
any questions relating to your duties and responsibilities 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 to be taken by
you hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(h) shall not advise any person tendering Old
Securities 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
Securities.
15. You shall take such action as may from time to time be
requested by the Company 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 (as defined in the
Prospectus) 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 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 Company,
Attention: General Counsel.
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16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to the Vice President
and Associate General Counsel of the Company and such other person or persons
as it may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the number of Old Securities 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
Company or any such other person or persons upon oral request made from time
to time prior to the Expiration Date of such other information as it or he or
she reasonably requests. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the Company 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
Company shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer. You shall prepare a final list
of all persons whose tenders were accepted, the aggregate principal amount of
Old Securities tendered, the aggregate principal amount of Old Securities
accepted and deliver said list to the Company.
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.
18. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to funds deposited
with you for the payment of transfer taxes by reasons of amounts, if any,
borrowed by the Company, or any of its subsidiaries or affiliates pursuant to
any loan or credit agreement with you or for compensation owed to you
hereunder.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto.
20. You hereby acknowledge receipt of the Prospectus and
the Letter of Transmittal and further acknowledge that you have examined each
of them. 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,
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liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold
you harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising
out of or in connection with any act, omission, delay or refusal made by you
in 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 Old Securities 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 Securities; 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 gross negligence or willful misconduct. In no case shall the Company
be liable under this indemnity with respect to any claim against you unless
the Company shall be notified by you, by letter 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 notice of commencement of action. 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, the Company 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, the Company 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, and so long as you have not
determined, in your reasonable judgment, that a conflict of interest exists
between you and the Company.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Company understands that you are required to
deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service in accordance with applicable
regulations.
23. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable
in respect of the exchange of Old Securities, the Company's check in the
amount of all transfer taxes so payable, and the Company shall reimburse you
for the amount of any and all transfer taxes payable in respect of the
exchange of Old Securities; provided, however, that you
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shall reimburse the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such refund is received
by you.
24. 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.
25. 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.
26. 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.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part,
except by a written instrument signed by a duly authorized representative of
the party to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing
(including facsimile or similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set forth below:
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If to the Company:
Xxxxx Healthcare Corporation
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Paragraphs 19, 21 and 23 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates for Securities, funds
or property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Agreement and confirm
the arrangements herein provided by signing and returning the enclosed copy.
XXXXX HEALTHCARE CORPORATION
By:
------------------------------------
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
--------------------------------
Name:
Title:
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SCHEDULE I
FEES
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