EXHIBIT 99.3
- , 1999
EXCHANGE AGENT AGREEMENT
State Street Bank and Trust Company
Corporate Trust Department
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Assistant Vice President
Dear ▇▇. ▇▇▇▇▇▇▇▇:
Big Flower Press Holdings, Inc., a Delaware corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $250,000,000
aggregate principal amount of its 8 5/8% Senior Subordinated Notes due December
1, 2008 (the "Exchange Notes"), for a like principal amount of its outstanding
8 5/8% Senior Subordinated Notes due December 1, 2008 (the "Private Notes"). The
terms and conditions of the Exchange Offer are set forth in 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"), and proposed to be distributed
to all record holders of the Private Notes. The Private Notes and the Exchange
Notes are collectively referred to herein as the "Notes." Capitalized terms used
herein and not defined shall have the respective meanings ascribed to them in
the Prospectus or accompanying Letter of Transmittal.
The Company hereby appoints State Street Bank and Trust Company to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer and
you hereby accept such appointment. References hereinafter to "you" shall refer
to State Street Bank and Trust Company.
The Exchange Offer is expected to be commenced by the Company on or about
- , 1999. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Private Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Private
Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on - ,
1999, 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 next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Private
Notes not theretofore accepted for exchange. 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", in the Letter of Transmittal accompanying the Prospectus or
as specifically set forth herein; provided, however, that in no way will
your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
2. You will establish an account with respect to the Private Notes 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
Private Notes by causing
the Book-Entry Transfer Facility to transfer such Private Notes into your
account in accordance with the Book-Entry Transfer Facility's procedures for
such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (and confirmation of book-entry transfers of
Private Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the Private
Notes, to ascertain whether: (i) the Letters of Transmittal, certificates
and any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and that such book-entry
confirmations are in due and proper form and contain the information
required to be set forth therein, and (ii) the Private Notes have otherwise
been properly tendered. In each case where the Letter of Transmittal or any
other document has been improperly completed or executed, or where
book-entry confirmations are not in due and proper form or omit certain
information, or any of the certificates for Private Notes 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 Chairman, the President and Chief Executive
Officer, any of the Executive Vice Presidents or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (such
approval, if given orally, to be confirmed in writing) or any other person
designated by such an officer in writing, you are authorized to waive any
irregularities in connection with any tender of Private Notes pursuant to
the Exchange Offer.
5. Tenders of Private 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 Private 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 5, Private Notes which the Chairman, the President and Chief
Executive Officer, any of the Executive Vice Presidents or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or any other officer of the Company designated by any such person 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 Private Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private Notes 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 Private Notes
provided that customary transfer requirements, including those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated and
as permitted in the Letter of Transmittal and deliver certificates for
Private Notes to the transfer agent for split-up and return any untendered
Private Notes 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 Private Notes properly tendered and you, on behalf of the Company,
will exchange such Private Notes for Exchange Notes and cause such Private
Notes to be canceled. Delivery of Exchange Notes will be made on behalf of
the Company by you at the rate of $1,000
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principal amount of Exchange Notes for each $1,000 principal amount of the
Private Notes tendered promptly after notice (such notice if given orally,
to be confirmed in writing) of acceptance of said Private Notes by the
Company; provided, however, that in all cases, Private Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt
by you of certificates for such Private Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and, except as described in the section of the Prospectus
captioned "The Exchange Offer--Procedures for Tendering", duly executed
Letter of Transmittal (or facsimile thereof) with any required signature
guarantees and any other required documents. Unless otherwise instructed by
the Company, you shall issue Exchange Notes 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, Private Notes tendered pursuant to
the Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange Offer.
10. The Company shall not be required to exchange any Private 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 Private Notes
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 Private Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Private 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 (or effected
such book-entry transfer).
12. All certificates for reissued Private Notes, unaccepted Private
Notes or for Exchange Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class certified mail, return
receipt requested, under a blanket surety bond obtained by you protecting
you and the Company from loss or liability arising out of the nonreceipt or
nondelivery of such certificates or (b) by registered mail insured by you
separately for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to
solicit tenders.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those specifically
set forth in the Prospectus, the Letter of Transmittal or 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 for the Private Notes deposited with you pursuant
to the Exchange Offer, and will not be required to and 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;
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(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 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 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 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; and
(h) shall not advise any person tendering Private Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all
or any portion of Private Notes or as to the market value, decline or
appreciation in market value of any Private Notes that may or may not
occur as a result of the Exchange Offer or as to the market value of the
Exchange Notes; provided, however, that in no way will your general duty
to act in good faith and without gross negligence or willful misconduct
be limited by the foregoing.
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.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of the Company
(telephone number (▇▇▇) ▇▇▇-▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇) or ▇▇▇▇▇
▇. ▇▇▇▇▇▇ of the Company (telephone number (▇▇▇) ▇▇▇-▇▇▇▇, facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇) and such other person or persons as the Company 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 aggregate principal amount of Private Notes which
have been duly tendered pursuant to the Exchange Offer and the items
received by you pursuant to the Exchange Offer and 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 Private Notes
tendered, the aggregate principal amount of Private Notes accepted and the
identity of any Participating Broker-Dealers and the aggregate principal
amount of Exchange Notes delivered to each, and deliver said list to the
Company.
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17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you 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, or one year, whichever is longer,
and thereafter shall be delivered by you to the Company. You shall dispose
of unused Letters of Transmittal and other surplus materials as instructed
by 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, 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 Private 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 Private Notes; provided, however, that
anything in this Agreement to the contrary notwithstanding, 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 cable or by facsimile which
is 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 may assume the defense of any pending or threatened action against
you in respect of which indemnification may be sought hereunder, in which
case the Company shall not thereafter be responsible for the subsequently
incurred fees and disbursements of legal counsel for you under this
paragraph so long as the Company shall retain counsel reasonably
satisfactory to you to defend such suit; provided, that the Company shall
not be entitled to assume the defense of any such action if the named
parties to such action include both you and the Company and representation
of both parties by the same legal counsel would, in the written opinion of
your counsel, be inappropriate due to actual or potential conflicting
interests between you and the Company. You understand and agree that the
Company shall not be liable under this paragraph for the fees and expenses
of more than one legal counsel for you.
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, in certain
instances, to deduct thirty-one percent (31%) with respect to interest paid
on the Exchange Notes and proceeds from the sale, exchange, redemption or
retirement of the Exchange Notes from holders who
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have not supplied their correct Taxpayer Identification Numbers or required
certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
23. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Private Notes and, upon receipt of a
written approval from the Company, 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 Private Notes, your 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 Private Notes; provided, however, that you 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.
25. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto expressly agree that
no holder of Private Notes or Exchange Notes shall have any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
26. 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.
27. 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.
28. 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.
29. 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:
If to the Company, to:
Big Flower Press Holdings, Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Executive Vice President and
General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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If to the Exchange Agent, to:
State Street Bank and Trust Company
Corporate Trust Department
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Assistant Vice President
30. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 17, 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 Notes, funds or property then
held by you as Exchange Agent under this Agreement.
31. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
BIG FLOWER PRESS HOLDINGS, INC.
By:
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Accepted as of the date
first above written:
STATE STREET BANK AND TRUST
COMPANY, as Exchange Agent
By: -------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
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SCHEDULE I
FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
I. ACCEPTANCE FEE Waived
Our Acceptance Fee includes review of all relevant documentation, closing
of transaction, setting up records and opening accounts.
II. ADMINISTRATIVE FEE $3,000
Our administrative fee covers all duties of the Agent including
distributing exchange offer documents to DTC, receipt and examination of
required exchange offer documentation, reporting to the Company,
calculation of and delivery to participants and DTC. Fees shall be billed
upon closing.
III. OUT OF POCKET EXPENSES As Incurred
All out-of-pocket expenses including but not limited to postage, express
mail, telecopier, long distance telephone, wire transfer charges, courier
expenses, or other expense incurred by the State Street Bank and Trust
Company during its acceptance and administration shall be billed at cost
as incurred.
IV. EXTRAORDINARY SERVICES
Charges for the performance of any service not of a routine administrative
nature or not contemplated at closing and specifically covered elsewhere
in this schedule of fees will be determined by appraisal in amounts
commensurate with the service rendered.
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