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Exhibit 99.3
EXCHANGE AGENT AGREEMENT
Dated as of _______, 0000
Xxxxx Xxxxxx Bank & Trust Company
0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Corporate Trust Department
Boston, MA 02110
Attn.: Xxxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Pursuant to the provisions of the Offer (the "Exchange Offer") for all
of the outstanding 9 7/8% Senior Subordinated Notes due 2006 (the "Initial
Notes") of Safelite Glass Corp., a Delaware corporation (the "Company"), in
exchange for 9 7/8% Series B Senior Subordinated Notes due 2006 (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 time on
__________, 1998, unless extended, for the Company's 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.
__________) (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, shall expire. Upon receipt
and execution of this letter and confirmation of the arrangements herein set
forth, Fleet National Bank will act as the Exchange Agent for the Exchange (the
"Exchange Agent"). A copy of the Prospectus is attached hereto as Exhibit A.
A copy of the form of the letter of transmittal, including the related
notice of guaranteed delivery (the "Letters of Transmittal"), to be used by the
holders of record of the Initial Notes (the "Holders") to surrender their
Initial Notes in order to receive the Exchange Notes pursuant to the Exchange is
attached hereto as Exhibit B.
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 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. You are to examine the Letters of Transmittal and the Initial Notes
and other documents delivered or mailed to you, by or for the Holders, prior to
the Exchange 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 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 officers of the Company evidenced
by 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
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Company as described above and shall be fully protected and indemnified in such
reliance.
3. 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 (i) 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
or (ii) in the event the holder is a participant in the Depository Trust Company
("DTC") system, by the utilization of DTC's Automated Tender Offer Program
("ATOP") and any evidence required by the Exchange Offer on each business day
from the execution hereof up to the Expiration Date.
4. Upon the oral or 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) Xxx X. Xxxxxxx, Controller
(telephone (000) 000-0000) and (ii) Xxxxxx X. Xxxx, Esq., Xxxxxxxx, Xxxxxxx &
Xxxxxxx, A Professional Corporation, counsel to the Company (telephone (617)
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. Furthermore, you shall transmit copies
of all Agents Messages (as defined in the Letter of Transmittal) received in
connection with ATOP to the aforementioned persons as they are received. 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.
5. 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.
6. If any Holder shall report to you that his/her failure to surrender
Initial Notes registered in his/her 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.
7. As soon as practicable after you mail or deliver to an Initial
Holder the Exchange Notes that such Holder may be entitled to receive, you shall
arrange for cancellation of the Initial Notes submitted to you or returned by
DTC in connection with ATOP. Such Notes shall be forwarded to Fleet National
Bank, as trustee (the "Trustee") under the Indenture dated as of December 20,
1996 governing the Initial Notes, for cancellation and retirement as you are
instructed by the Company (or a representative designated by the Company).
8. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including but not limited to counsel fees not previously paid to you as set
forth in Exhibit C) in connection with your services promptly after submission
to the Company of itemized statements.
9. As the Exchange Agent hereunder you:
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(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any of the Company's Holder record information, any
Initial Notes deposited with you hereunder 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;
(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expenses or liability unless
you shall have been furnished with an indemnity reasonably satisfactory
to you;
(d) may rely on and shall be fully protected and indemnified
as provided in paragraph 10 hereof in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram, facsimile
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 rely on and shall be fully protected and indemnified
as provided in paragraph 10 hereof in acting upon the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of the Company or
such other person or persons as may be designated or whom you
reasonably believe has been designated by the Company;
(f) may consult with counsel satisfactory to you, including
counsel for the Company, and the opinion or advice 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 the opinion or advice of such counsel;
(g) shall not at any time advise any person as to the wisdom
of the Exchange or as to the market value or decline or appreciation in
market value of any Initial Notes or Exchange Notes; and
(h) shall not be liable for anything which you may do or
refrain from doing in connection with this letter except for your gross
negligence, willful misconduct or bad faith.
10. The Company covenants and agrees to indemnify and hold harmless
State Street Bank & Trust Company and its officers, directors, employees, agents
and affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") and hold each Indemnified Party 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 summons, 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
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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, 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. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts and shall inure to the benefit of, and the obligations created
hereby shall be binding upon, the successors and assigns of the parties hereto.
This Agreement may not be modified orally. Any inconsistency between this
Agreement and the Letter 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.
Please acknowledge receipt of this letter and confirm the arrangements
herein provided by signing and returning the enclosed copy.
Very truly yours,
SAFELITE GLASS CORP.
By:________________________________
Name:
Title:
Accepted and Agreed to:
State Street Bank & Trust Company
Exchange Agent
By:_______________________________
Name:
Title:
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