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EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
DATED AS OF _______ , 0000
Xxxxxx Xxxxxx Trust Company of
New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Ladies and Gentlemen:
Eye Care Centers of America, Inc., a Texas corporation (the "Company"),
together with its subsidiary guarantors set forth on Schedule I hereto, is
offering to exchange up to $100,000,000 in principal amount of 91/8% Senior
Subordinated Notes due 2008 and up to $50,000,000 in principal amount of
Floating Interest Rate Subordinated Term Securities due 2008 (FIRST(sm))
(collectively, the Exchange Notes") for $100,000,000 in principal amount of its
91/8% Senior Subordinated Notes due 2008 and up to $50,000,000 in principal
amount of its outstanding Floating Interest Rate Subordinated Term Securities
due 2008 (FIRST(sm)), respectively (collectively, the "Initial Notes" and
together with the Exchange Notes the "Notes"), upon the terms and conditions set
forth in the Prospectus dated __________, ___ 1998 and in the related Letter of
Transmittal (together, the "Offer") annexed hereto as Exhibits A and B,
respectively. Capitalized terms not defined herein shall have the meanings set
forth in the Offer.
The Company hereby appoints you to act as Exchange Agent in connection
with the Offer and by your acknowledgment and acceptance of this Letter
Agreement you hereby accept such appointment.
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The Letter of Transmittal that accompanies the Prospectus sent to the
holders of Initial Notes (the "Initial Noteholders") shall be used by the
Initial Noteholders to accept the Offer, and contains instructions with respect
to the delivery of the Initial Notes for the Exchange Notes.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions and shall take such additional
reasonable action as from time to time may be reasonably requested and directed
in writing by the Company:
1. You are to mail the Prospectus and the Letters of Transmittal to all
of the Initial Noteholders on the day that you are notified in writing by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, and to make subsequent mailings thereof to
persons who become Holders prior to the Expiration Date as may from time to time
be requested by the Company.
2. The Offer shall expire at 5:00 p.m. New York City Time, on
__________, 1998 (the "Expiration Date"), or at any subsequent time to which the
Company, in its sole discretion, may extend the Offer by giving written notice
to you and a timely public announcement no later than 5:00 p.m. on the next
business day following the Expiration Date.
3. You are hereby directed to establish an account with respect to the
Exchange Notes (the "Book Entry Transfer Facility") at The Depository Trust
Company ("DTC") within two days after the date of the execution of this Letter
Agreement. Any financial institution that is a participant in the Book-Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Initial Notes by causing the Book-Entry Facility to transfer
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such Initial Notes into your account in accordance with the procedure for such
transfer established by the Book-Entry Transfer Facility.
4. You are to examine the Letters of Transmittal, the Initial Notes and
other documents, if any, as required by the Letter of Transmittal, delivered or
mailed to you or transmitted by facsimile transmission, as such form of delivery
is provided for in the Offer to ascertain whether (i) the Letters of Transmittal
are duly executed and completed in accordance with the instructions set forth in
the Offer, (ii) the other documents, if any, are properly executed and completed
and (iii) the Initial Notes have been tendered in accordance with the
instructions in the Letter of Transmittal and the Prospectus, provided, however,
that you shall be entitled to rely on the DTC electronic messages sent regarding
ATOP delivery of the Initial Notes to the Exchange Agent's account at DTC from
the DTC participants listed on the DTC position listing provided to you. In each
case where a Letter of Transmittal has been improperly executed or completed or,
for any reason, is not in proper form, or some other irregularity in connection
with the acceptance of the Offer exists, and if, in your opinion, the time
available to you so permits, you will endeavor to contact the tendering Initial
Noteholder, in the manner directed by the Company and agreed to by you, to give
such Initial Noteholder an opportunity to correct the irregularity in the manner
directed by the Company in a timely manner and agreed to by you. Determination
of all questions as to the proper completion or execution of a Letter of
Transmittal or as to the proper form for transfer of the Initial Notes or as to
any other irregularity in connection with the acceptance of this offer shall be
made by the Company, in its sole discretion, which determination shall be final
and binding on all tendering Initial Noteholders.
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5. Tenders of Initial Notes may be made only as set forth in the Letter
of Transmittal. Any additional handling, copying or retention requests from the
Company shall be at the Company's expense. The issuance of the Exchange Notes
shall only be done upon: (a) receipt of all tendered Initial Notes, fully
executed and properly completed Letters of Transmittal and accompanying
documentation required by the Offer, by the Exchange Agent; (b) delivery by the
Exchange Agent of the tendered Initial Notes to the Trustee for cancellation in
accordance with the Indenture; and (c) receipt of the duly authenticated
Exchange Notes from the Trustee. The Exchange Agent shall then deliver the
authenticated Exchange Notes to the tendering Initial Noteholders in accordance
with the instructions of each tendering Initial Noteholder in the Letters of
Transmittal. Any exceptions, alternatives or deviations from the delivery
instructions described in the Letter of Transmittal and the Prospectus shall
only be upon the written instructions of the Company, together with indemnity
satisfactory to you, in your reasonable discretion, for any Losses (as
hereinafter defined) that you may suffer in connection with the making of such
payment. You shall have no duty to enforce any guarantees given pursuant to the
section entitled "The Exchange Offer - How to Tender" in the Prospectus.
6. On each business day up to and including the Expiration Date, you
are to notify by facsimile, to (i) Xxxxxxx X. Xxxxxxx, Vice President/Controller
(telephone: (000) 000-0000) and facsimile: (000) 000-0000)) and (ii) Xxxxxxx X.
Xxxxxx, Xx., Esq. (telephone: (000) 000-0000) and facsimile: (000) 000-0000))
and such other persons as the Company may reasonably request, of the aggregate
principal amount of Initial Notes that have been properly tendered pursuant to
the offer and the number properly tendered that day.
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7. The tendered Initial Notes are to be dealt with as follows:
(i) As soon as practicable after the Company notifies you that
the Expiration Date of the Offer has occurred and will not be extended
pursuant to this paragraph 6 and upon receipt by you of the Initial
Notes and authorization to deliver such Initial Notes as directed by
the tendering Initial Noteholders, you shall (a) deliver the tendered
Initial Notes to such person or entity as the Company shall designate,
and (b) deliver over your window or send by first-class mail postage
prepaid to, or at the direction of, each Initial Noteholder, whose
Initial Notes were tendered, Exchange Notes in like aggregate principal
amount in the manner described in the Offer or as otherwise directed by
the Company in writing pursuant to an officers' certificate;
(ii) Tenders pursuant to the Offer are irrevocable, except as
set forth in the Letter of Transmittal;
(iii) If, pursuant to the terms of the Offer, the Company does
not accept for tender all or any part of the Initial Notes tendered, or
Initial Notes tendered are withdrawn in the manner provided in "The
Exchange Offer - Withdrawal Rights" in the Prospectus, or partial
tenders are made, you shall promptly return to, or, upon the order of,
the tendering Initial Noteholder, Initial Notes not accepted, and to
the extent required, submit to the Trustee for reissuance to, or upon
the order of, the tendering Initial Noteholder, Initial Notes not
tendered or purchased, which Initial Notes shall be returned to you for
distribution to the holders of such Initial Notes;
(iv) Initial Notes not accepted for tender shall be forwarded
by first-class mail under an existing insurance policy protecting you
and the Company from loss or
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liability arising out of the non-receipt or non-delivery of such
Initial Notes or by registered mail insured separately for the
replacement value of such Initial Notes.
8. For your services as Exchange Agent hereunder, the Company shall pay
you such fees as are set forth in Exhibit C hereto. The Company shall also
reimburse you for your reasonable out-of-pocket expenses (including, but not
limited to, counsel's reasonable fees and expenses) in connection with entering
into this Letter Agreement and your services hereunder promptly after submission
to the Company of an itemized statement in reasonable detail within thirty (30)
days following receipt of same. This paragraph shall survive any termination of
this Letter Agreement.
9. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto which
form part of this Letter Agreement;
(b) will be regarded as making no representations and having
no responsibilities regarding the validity, sufficiency, value or
genuineness of any Initial Notes deposited with you hereunder, and will
not be required to and will not make any representation as to the
validity, value or genuineness of the Offer;
(c) will be regarded as making no representations and having
no responsibilities regarding the validity, sufficiency, adequacy or
accuracy of the Prospectus or the Letter of Transmittal or any other
disclosure materials delivered in connection therewith;
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(d) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability, unless
you shall have been furnished with an indemnity from the Company
satisfactory to you;
(e) may rely on and shall be protected in acting in reliance
upon any instruction, direction, Officers, Certificate, certificate,
instrument, opinion, notice, letter, telegram or other document
delivered to you and believed by you to be genuine and to have been
signed by the proper party or parties;
(f) may rely on and shall be protected and fully indemnified,
pursuant to paragraph 9 hereof, in acting upon the written or oral
instructions confirmed in writing by facsimile transmission, with an
original delivered by guaranteed overnight courier, with respect to any
matter relating to your acting as Exchange Agent;
(g) may consult with counsel satisfactory to you (including
counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you in reliance upon such opinion,
provided, that you shall promptly notify the Company in writing of any
action taken or omitted by you in reliance upon such opinion; and
(h) shall not at any time advise any Initial Noteholder
tendering pursuant to the Offer as to the wisdom of making such tender
or as to the market value of the Exchange Notes.
10. The Company covenants and agrees to indemnify and hold harmless
United Trust Company of New York and its officers, directors, employees, agents
and affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") and hold each Indemnified Party
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harmless against any loss, liability or reasonable expense of any nature
(including reasonable legal and other fees and expenses) incurred in connection
with the administration of the duties of the Indemnified Parties hereunder;
provided, however, that no Indemnified Party shall be indemnified against any
such loss, liability or expense arising out of such party's gross negligence or
bad faith. In no event shall you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if you have been advised of the likelihood of such loss
or damage and regardless of the form of action. To the extent stated below, the
Company shall not be liable under this indemnity with respect to any claim
against any Indemnified Party unless the Company shall be notified by such
Indemnified Party by letter, or by cable, telex or telecopier, confirmed by
letter, of the written assertion of a claim against such Indemnified Party, or
of any action commenced against such Indemnified Party, promptly after but in
any event within 10 days of the date such Indemnified Party shall have received
any such written assertion of a claim or shall have been served with a summonses
and complaints, or other 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 of any liability which it may have otherwise than on account of this
Agreement or hereunder except such liability which is a direct result of such
Indemnified Party's failure to notify promptly. The Company shall be entitled to
participate at its own expense in the defense against any such claim or legal
action. If such Indemnified Party in such notice so directs, the Company shall
assume the defense of any suit brought to enforce any such claim. If such
Indemnified Party does not so direct the Company but elects not to defend any
such claim or legal action or if such Indemnified Party has elected to defend
any such claim or legal action but is not, in the reasonable judgment of the
Company,
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diligently pursuing such defense, then the Company may elect to assume the
defense of any suit brought to enforce any such claim. In the event the Company
assumes the defense, the Company shall not be liable for any fees and expenses
thereafter incurred by such Indemnified Party's counsel, except for any
reasonable fees and expenses of such Indemnified Party's counsel incurred in
representing such Indemnified Party that are necessary and appropriate as a
result of the need to have separate representation because of a conflict of
interest between such Indemnified Party and the Company. You shall not enter
into a settlement or other compromise with respect to any indemnified loss,
liability or expense without the prior written consent of the Company, which
shall not be unreasonably withheld or delayed.
11. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first-class certified or
registered mail, postage prepaid, or telecopied as follows:
If to the Company
address to the
Company at: Eye Care Centers of America, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: President
and a copy to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
If to you: United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xx. Xxxxxxxx Xxxxxxx
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purpose.
12. The Letter Agreement shall be construed and governed by the laws of
the State of New York.
13. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York state or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Letter Agreement, shall be heard and determined in such a New York state or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
14. This Letter Agreement may only be modified in writing. Any
inconsistency between this Letter Agreement and the Prospectus and related
Letter of Transmittal, as they may from time to time be amended, shall be
resolved in favor of the Prospectus and the related Letter of Transmittal,
except wit h respect to duties, liabilities and indemnification of you as
Exchange Agent which shall be governed exclusively by this Letter Agreement.
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15. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
16. This Letter Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original but all such counterparts
shall together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Please acknowledge receipt of this Letter Agreement and confirm your
agreement to the arrangements herein provided by signing and returning the
enclosed copy.
Very truly yours,
EYE CARE CENTERS OF AMERICA, INC.
By:______________________________
Name:
Title:
ACKNOWLEDGED, ACCEPTED AND AGREED TO
THIS ____ DAY OF___________, 1998:
UNITED STATES TRUST COMPANY OF
NEW YORK
By:______________________________
Name:
Title:
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SCHEDULE I
List of Subsidiary Guarantors
Enclave Advancement Group, Inc.
ECCA Managed Vision Care, Inc.
Visionworks Holdings, Inc.
Visionworks, Inc.
Visionworks Properties, Inc.
Eye Care Holdings, Inc.
Visionary Retail Management, Inc.
Visionary Properties, Inc.
Visionary MSO, Inc.
The Xxxxx Group, Inc.
Hour Eyes, Inc.
Skylab Optical, Inc.
Metropolitan Vision Services, Inc.
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XXXXXXX X
XXXXXXXX XX XXXX
Xxxxxx Xxxxxx Trust Company of New York
to act as
Exchange Agent
Exchange Agent Fee: $7,500
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