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EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
As of July __, 0000
Xxxxx Xxxxxx Bank and Trust Company
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Nortek, Inc., a Delaware corporation (the "Company"), intends to make
an offer (the "Exchange Offer") to exchange its 9 7/8% Series B Senior
Subordinated Notes due 2011 (the "New Notes"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus is a part, for a like principal
amount of its issued and outstanding 9 7/8% Senior Subordinated Notes due 2011
(the "Existing Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated July __, 2001 (the
"Prospectus"), distributed to all holders of the Existing Notes. The Existing
Notes and the New Notes are collectively referred to herein as the "Notes."
The Company hereby appoints State Street Bank and Trust Company ("SSB")
to act as exchange agent (the "Exchange Agent") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to SSB.
The Exchange Offer is expected to be commenced by the Company on or
about the date of the Prospectus. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Existing Notes to accept the
Exchange Offer, and contains instructions with respect to the delivery of
certificates representing the Existing Notes tendered.
In the event any holder of the Existing Notes is tendering by
book-entry transfer to the Exchange Agent's account at The Depository Trust
Company ("DTC"), such holders may tender through the DTC Automated Tender Offer
Program ("ATOP"). DTC participants will transmit their acceptance of the
Exchange Offer to DTC, which will verify the acceptance and execute a book-entry
delivery to your account at DTC. DTC will then send an "Agent's Message" to you
for its acceptance.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
August __, 2001, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"), oral or written notice of which
extension shall be given to you by the Company. The Company shall give oral or
written notice to you of the effective date of the Registration Statement
promptly after the Registration Statement becomes effective, and until your
receipt of such notice you shall be entitled to assume in good faith that such
effective date has not occurred. 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 or written notice to you before 9:00 a.m., New York City time, no
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later than the next business day after the previously scheduled Expiration Date.
Any oral notice given hereunder shall be subsequently confirmed in writing.
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 no implied duties shall be construed or read
unto this Agreement against you); provided, however, that your general duty to
act in good faith shall not be discharged by the foregoing.
2. Subject to applicable Automated Tender Offer Program System of the
Depository Trust Company ("ATOP"), you are to examine each of the Letters of
Transmittal and original Existing Notes and any other documents delivered or
mailed to you by or for holders of the Existing Notes to ascertain whether: (i)
the Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with the instructions set forth therein and
(ii) the Existing Notes have otherwise been properly tendered. In each case
where the Letter of Transmittal or any other document received by you has been
improperly completed or executed or any of the Existing Notes are not in proper
form for transfer or some other irregularity apparent on the face of any such
documents received by you in connection with the acceptance of the Exchange
Offer exists, you will endeavor promptly to inform the presenters of the need
for fulfillment of all requirements and promptly to take any other action as may
be necessary or advisable to cause such irregularity to be corrected, and you
will promptly notify the Company thereof. With respect to any Letters of
Transmittal and Existing Notes tendered through the ATOP (or applicable
guaranteed delivery procedure) you shall be entitled to rely conclusively on
information or confirmations you receive from DTC (or other applicable
institution, as the case may be) with respect thereto.
3. With the approval of any of the Chairman, the Chief Executive
Officer, the President, any Vice President and the Secretary (each, a
"Designated Officer") of the Company, or of counsel to the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such a Designated Officer, you are authorized to waive any
irregularities in connection with any tender of Existing Notes pursuant to the
Exchange Offer.
4. Tenders of Existing 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", and Existing 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 4, Existing Notes that
a Designated Officer of the Company shall approve, as having been properly
tendered shall be considered to be properly tendered.
5. You shall advise the Company with respect to any Existing Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Existing Notes.
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6. Subject to applicable ATOP procedures, you shall accept tenders:
(a) in cases where the Existing Notes received by you, 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 Existing
Notes provided that customary transfer requirements, have been
satisfied.
You shall accept partial tenders of Existing Notes where so indicated
and as permitted in the Letter of Transmittal and deliver notes representing the
principal amount tendered to the transfer agent or split-up and return any
untendered principal amount to the holder (or such person as may be designated
in the Letter of Transmittal) as promptly as practicable.
7. The Company will exchange Existing Notes duly tendered for New Notes
on the terms and subject to the conditions set forth in the Prospectus and the
Letter of Transmittal. Delivery of Existing Notes will be made on behalf of the
Company at the rate of one dollar of principal amount of New Notes for each one
dollar of principal amount of Existing Notes tendered as soon as practicable
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said principal amount of Existing Notes by the Company, provided,
however, that in all cases, Existing Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of the original
Existing Notes representing such principal amount, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents.
8. 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, Existing Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
9. The Company shall not be required to exchange any Existing 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 Existing Notes
tendered shall be given (and confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Existing Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions of the Exchange Offer" or
otherwise, you shall as soon as practicable after the Expiration Date (and
receipt of notification from the Company of such non-acceptance) return any
certificates representing unaccepted Existing Notes (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.
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11. All certificates representing reissued Existing Notes, unaccepted
Existing Notes or New Notes shall be forwarded by (a) first-class certified
mail, return receipt requested or (b) by registered mail.
12. 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 Existing Notes represented thereby deposited
with you pursuant to 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 expend or risk your own funds,
or to take any legal action hereunder which might in your reasonable
judgment involve any expense or liability, unless you shall have been
furnished with satisfactory 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,
consent, 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 or 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 Designated Officer of the Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written
opinion of such independent 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 written opinion of such counsel;
(h) shall not advise any person tendering Existing 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 Existing Notes;
(i) you shall not be deemed to have notice of any fact, claim
or demand with respect hereto unless actually known by an officer
within your corporate trust department charged with responsibility for
administering this Agreement or unless in writing received by you and
making specific reference to this Agreement or the Exchange Offer;
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(j) you shall not be under any responsibility for the
validity, genuineness or due authorization or execution of, or with
respect to any signatures appearing on, any Letter of Transmittal (or
with respect to the truth or accuracy of any information therein
contained), any certificate representing the Notes or any book-entry
transfer of the Notes; and
(k) neither you nor any of your directors, officers or
employees shall be liable to anyone for any error of judgment, or for
any act done or step taken or omitted to be taken by you or any of
your directors, officers or employees, or for any mistake of fact or
law, or for anything which you or any of your directors, officers or
employees, may do or refrain from doing in connection with or in the
administration of this Agreement, unless and except to the extent the
same constitutes gross negligence, willful misconduct or bad faith on
your part.
13. You shall take such action as may from time to time be requested by
the Company (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 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.
14. You shall advise by facsimile transmission or telephone (and, in
the case of advice by telephone, promptly thereafter confirm in writing) to the
following designated person (or such other person as such person may
subsequently designate by written notice to you) at the Company on each business
day up to and including the business day immediately following the Expiration
Date, as to the total principal amount of Existing Notes that have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement as of the close of business or the immediately preceding business day,
separately reporting and giving cumulative totals as to items properly received
and items improperly received:
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
In addition, you will also inform, and cooperate in making available
to, such person at the Company upon oral request reasonably made from time to
time prior to the Expiration Date such other information in your possession
regarding the items received by you in connection with the Exchange Offer as he
or she reasonably requests. After the Exchange Date, you shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of Existing Notes tendered, the aggregate principal amount of Existing Notes
accepted and deliver said list to the Company.
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15. Letters of Transmittal and Notices of Guaranteed Delivery received
by you 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 in
your possession by returning them to the Company.
16. 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 reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with your or for compensation owed to you hereunder.
17. For services tendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto, and
shall be entitled to reimbursement for out-of-pocket disbursements and expenses
(including the reasonable fees of your counsel) incurred in connection with your
performance and observance of, or pursuant to, the terms of this Agreement, each
of which the Company agrees to pay.
18. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal (with respect to each of which the Company hereby represents to you
that it is a final copy) 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, immunities, liabilities and
indemnification of you as Exchange Agent which shall be controlled by this
Agreement.
19. The Company covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder (and your directors, officers and
employees) harmless against any loss, liability, cost or expense, including, but
not limited to, reasonable attorneys' fees, arising out of or in connection with
your appointment as Exchange Agent hereunder, or your performance or observance
of, or pursuant to, the terms of this Agreement, including without limitation
any loss, liability cost or expense arising from 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 Existing 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 Existing 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 gross negligence, willful misconduct or bad faith. The foregoing indemnity
shall survive the termination of this Agreement.
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, unless in your judgment,
which must be
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reasonable and made in good faith, it is advisable for you to be represented or
advised by separate counsel.
20. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the Commonwealth
of Massachusetts applicable to agreements made and to be performed entirely
within such state, 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. This Agreement may not be modified orally.
21. This Agreement may be executed in one 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.
22. In case any provisions 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 of the party to be
charged.
24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Exchange Agent:
State Street Bank and Trust Company
Corporate Trust Department
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Phone: (000) 000-0000
Telecopier: (000) 000-0000
27. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety (90) days following the Expiration Date. Upon any
termination of this Agreement, you shall promptly deliver to the Company any
certificates, funds or property then held by you as Exchange Agent under this
Agreement.
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28. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangement herein provided by signing and returning the enclosed copy.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
and delivered on its behalf by a duly authorized officer intending the same to
be effective as of the date first written above.
NORTEK, INC.
By: _______________________________
Name:
Title:
Accepted as of the date first above
written.
STATE STREET BANK AND TRUST COMPANY,
as Exchange Agent
By: _______________________________
Name:
Title:
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Schedule I
FEE SCHEDULE
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