Exhibit 99.3
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into
as of __________, 2003, by and between Xxxxx North America Finance, Inc., a
Delaware corporation (the "Issuer"), and Bank One, National Association, a
national banking association, as exchange agent (the "Exchange Agent").
RECITALS
The Issuer proposes to make an offer to exchange, upon the terms and
subject to the conditions set forth in the Issuer's Prospectus dated
____________, 2003 (the "Prospectus") and the accompanying letter of transmittal
(the "Letter of Transmittal"), forms of which are attached hereto as Exhibit A
and Exhibit B, respectively (and which, taken together, constitute the "Exchange
Offer"), $403,000,000 aggregate principal amount of its outstanding,
unregistered 7-7/8% Senior Notes due 2011 (the "Old Notes") for an equal
principal amount of 7-7/8% Senior Notes due 2011 (the "New Notes" and, together
with the Old Notes, the "Notes") registered under the Securities Act of 1933, as
amended (the "Securities Act").
The Exchange Offer will commence as soon as practicable after the Issuer's
Registration Statement on Form S-4 relating to the Exchange Offer is declared
effective under the Securities Act, as notified in writing to the Exchange Agent
by the Issuer (the "Effective Time") and shall terminate at 5:00 p.m., New York
City time, on __________, 2003 (the "Expiration Date"), unless the Exchange
Offer is extended by the Issuer and the Issuer notifies the Exchange Agent of
such extension by 5:00 p.m., New York City time, on the previous Expiration
Date, in which case, the term "Expiration Date" shall mean the latest date and
time to which the Exchange Offer is extended. In connection therewith, the
undersigned parties hereby agree as follows:
1. Appointment and Duties as the Exchange Agent. The Issuer hereby
authorizes Bank One, National Association, to act as the Exchange Agent in
connection with the Exchange Offer, and Bank One, National Association, hereby
agrees to act as the Exchange Agent and to perform the services outlined herein
in connection with the Exchange Offer on the terms and conditions contained
herein.
2. Mailing to Holders of the Old Notes.
A. As soon as practicable after its receipt of notification from the
Issuer as to the Effective Time, the Exchange Agent will mail to each registered
holder of the Old Notes (i) a Letter of Transmittal with instructions (including
instructions for completing a substitute Form W-9), (ii) a copy of the
Prospectus, and (iii) a Notice of Guaranteed Delivery substantially in the form
attached hereto as Exhibit C (the "Notice of Guaranteed Delivery"). Thereafter,
the Exchange Agent shall promptly mail such materials to any party requesting
them.
B. The Issuer shall supply the Exchange Agent with sufficient copies of
the Prospectus, the Letter of Transmittal and the Notice of Guaranteed Delivery
to enable the Exchange Agent to perform its duties hereunder.
3. ATOP Registration. As soon as practicable, the Exchange Agent shall
establish an account with DTC in its name to facilitate book-entry tenders of
the Old Notes through DTC's Automated Tender Offer Program ("ATOP") for the
Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items. From and after the
Effective Time, the Exchange Agent is hereby authorized and directed to (i)
accept the Letters of Transmittal, duly executed in accordance with the
instructions thereto (or a manually signed facsimile thereof), and any requisite
collateral documents from holders of the Old Notes and (ii) surrender the Old
Notes to which such Letters of Transmittal relate. The Exchange Agent is
authorized to request from any person tendering the Old Notes such additional
documents as the Exchange Agent or the Issuer deems appropriate. The Exchange
Agent is hereby authorized and directed to process withdrawals of tenders to the
extent withdrawal thereof is permitted by the Exchange Offer.
5. Defective or Deficient Old Notes and Instruments.
A. As soon as practicable after receipt, the Exchange Agent will examine
instructions transmitted by DTC (the "DTC Transmissions"), the Old Notes, the
Letters of Transmittal, the Notices of Guaranteed Delivery and other documents
received by the Exchange Agent in connection with tenders of the Old Notes to
ascertain whether (i) the Letters of Transmittal are completed and executed in
accordance with the instructions set forth therein (or that the DTC
Transmissions contain the proper information required to be set forth therein),
(ii) the Old Notes have otherwise been properly tendered in accordance with the
Prospectus and the Letters of Transmittal (or that book-entry confirmations are
in due and proper form and contain the information required to be set forth
therein) and (iii) if applicable, the other documents (including the Notice of
Guaranteed Delivery) are properly completed and executed.
B. If any Letter of Transmittal or other document has been improperly
completed or executed (or any DTC Transmissions are not in due and proper form
or omit required information) or the Old Notes accompanying such Letter of
Transmittal are not in proper form for transfer or have been improperly tendered
(or the book-entry confirmations are not in due and proper form or omit required
information) or if some other irregularity in connection with any tender of any
Old Notes exists, the Exchange Agent shall promptly report such information to
the holder of such Old Notes. If such condition is not promptly remedied by the
holder, the Exchange Agent shall report such condition to the Issuer and await
the Issuer's direction. All questions as to the validity, form, eligibility
(including timeliness of receipt), acceptance and withdrawal of any Old Notes
tendered or delivered shall be determined by the Issuer, in its sole discretion.
Notwithstanding the above, the Exchange Agent shall not incur any liability for
failure to give such notification unless such failure constitutes gross
negligence, bad faith or willful misconduct.
C. The Issuer reserves the absolute right (i) to reject any or all tenders
of any particular Old Notes determined by the Issuer not to be properly tendered
or the acceptance or exchange of which may, in the opinion of the Issuer or the
Issuer's counsel, be unlawful and (ii) to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the tender of any particular Old
Notes whether or not similar conditions or defect or irregularity are waived in
the case of other Old Notes. The Issuer's interpretation of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and the
Notice of Guaranteed Delivery and the instructions set forth therein) will be
final and binding.
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6. Requirements of Tenders.
A. Tenders of the Old Notes shall be made only as set forth in the Letter
of Transmittal, and shall be considered properly tendered only when tendered in
accordance therewith. Notwithstanding the provisions of this paragraph, any Old
Notes that the Chief Executive Officer or Chief Financial Officer of the Issuer
shall approve as having been properly tendered shall be considered to be
properly tendered.
B. The Exchange Agent shall (a) ensure that each Letter of Transmittal and
the related Old Notes or a bond power are duly executed (with signatures
guaranteed where required) by the appropriate parties in accordance with the
terms of the Exchange Offer; (b) in those instances where the person executing
the Letter of Transmittal (as indicated on the Letter of Transmittal) is acting
in a fiduciary or a representative capacity, ensure that proper evidence of his
or her authority so to act is submitted; and (c) in those instances where the
Old Notes are tendered by persons other than the registered holder of such Old
Notes, ensure that customary transfer requirements, including any applicable
transfer taxes, and the requirements imposed by the transfer restrictions on the
Old Notes (including any applicable requirements for certifications, legal
opinions or other information) are fulfilled.
7. Exchange of the Old Notes.
A. Promptly after the Expiration Date and authentication of the New Notes
by the trustee, the Issuer will deliver the New Notes to the Exchange Agent.
Upon surrender of the Old Notes properly tendered and acceptance thereof by the
Issuer in accordance with the Exchange Offer, the Exchange Agent shall deliver
or cause to be delivered the New Notes to the holders of such surrendered and
accepted Old Notes. The principal amount of the New Notes to be delivered to a
holder shall equal the principal amount of the Old Notes surrendered by such
holder and accepted for exchange by the Issuer.
B. The New Notes issued in exchange for certificated Old Notes shall be
mailed by the Exchange Agent, in accordance with the instructions contained in
the Letter of Transmittal, by first-class or registered mail, and under coverage
of the Exchange Agent's blanket surety bond for first-class or registered mail
losses protecting the Issuer from loss or liability arising out of the
non-receipt or non-delivery of such New Notes or the replacement thereof.
C. Notwithstanding any other provision of this Agreement, issuance of the
New Notes for accepted Old Notes pursuant to the Exchange Offer shall be made
only after deposit with the Exchange Agent of the Old Notes, the related Letter
of Transmittal and any other required documents.
8. Notes Held in Trust. The New Notes and any cash or other property (the
"Property") deposited with or received by the Exchange Agent (in such capacity)
from the Issuer shall be held in a segregated account, solely for the benefit of
the Issuer and holders tendering the Old Notes, as their interests may appear,
and the Property shall not be commingled with securities, money, assets or
property of the Exchange Agent or any other party.
9. Reports to the Issuer. The Exchange Agent shall notify, by facsimile or
electronic communication, the Issuer as to the principal amount of the Old Notes
which have been duly tendered since the previous report and the aggregate amount
tendered since the Effective Time
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on a weekly basis (and on a more frequent basis as reasonably requested) until
the Expiration Date. Such notice shall be delivered substantially in the form
attached hereto as Exhibit D.
10. Record Keeping. Each Letter of Transmittal, the Old Notes and any
other documents received by the Exchange Agent in connection with the Exchange
Offer shall be stamped by the Exchange Agent to show the date of receipt (or if
the Old Notes are tendered by book-entry delivery, such form of record keeping
of receipt as is customary for tenders through ATOP) and, if defective, the date
and time the last defect was cured or waived by the Issuer. The Exchange Agent
shall cancel certificated Old Notes. The Exchange Agent shall retain all the Old
Notes and Letters of Transmittal and other related documents or correspondence
received by the Exchange Agent until the Expiration Date. The Exchange Agent
shall return all such materials to the Issuer as soon as practicable after the
Expiration Date. If the Exchange Agent receives any Letters of Transmittal after
the Expiration Date, the Exchange Agent shall return the same together with all
enclosures to the party from whom such documents were received.
11. Discrepancies or Questions. Any discrepancies or questions regarding
any Letter of Transmittal, Old Note, Notice of Guaranteed Delivery, notice of
withdrawal or any other documents received by the Exchange Agent in connection
with the Exchange Offer shall be referred to the Issuer and the Exchange Agent
shall have no further duty with respect to such matter; provided that the
Exchange Agent shall cooperate with the Issuer in attempting to resolve such
discrepancies or questions.
12. Transfer of Registration. The New Notes may be registered in a name
other than that of the holder of a surrendered Old Note, if and only if (i) the
Old Note surrendered shall be properly endorsed (either by the registered holder
thereof or by a properly completed separate bond power with the signatures on
such endorsement guaranteed by an Eligible Institution (as defined in the Letter
of Transmittal)) and otherwise in proper form for transfer, (ii) the person
requesting such transfer of registration shall pay (or shall be billed directly
for such transfer taxes) to the Exchange Agent any transfer or other taxes
required, or shall establish to the Exchange Agent's satisfaction that such tax
is not owed or has been paid and (iii) such other documents and instruments as
the Issuer or the Exchange Agent require shall be received by the Exchange
Agent.
13. Partial Tenders. If, pursuant to the Exchange Offer, less than all of
the principal amount of any Old Note submitted to the Exchange Agent is
tendered, the Exchange Agent shall, promptly after the Expiration Date, return,
or cause the registrar with respect to each such Old Note to return, a new Old
Note for the principal amount not being tendered to, or in accordance with the
instruction of, the holder who has made a partial tender.
14. Withdrawals. A tendering holder may withdraw tendered Old Notes as set
forth in the Prospectus, in which event the Exchange Agent shall, after proper
notification of such withdrawal, return such Old Notes to, or in accordance with
the instructions of, such holder and such Old Notes shall no longer be
considered properly tendered. Any withdrawn Old Notes may be tendered again by
following the procedures therefor described in the Prospectus at any time on or
prior to the Expiration Date.
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15. Rejection of Tenders. If, pursuant to the Exchange Offer, the Issuer
does not accept for exchange all of the Old Notes tendered by a holder of Old
Notes, the Exchange Agent shall return or cause to be returned such Old Notes to
such holder of Old Notes.
16. Cancellation of Exchanged Old Notes. The Exchange Agent is authorized
and directed to cancel all the Old Notes received by it upon delivering the New
Notes to tendering holders of the Old Notes as provided herein. The Exchange
Agent shall maintain a record as to which Old Notes have been exchanged pursuant
to Section 7 hereof.
17. Requests for Information. The Exchange Agent shall accept and comply
with telephone, e-mail and mail requests for information from any person
concerning the proper procedure to tender the Old Notes. The Exchange Agent
shall provide copies of the Prospectus, Letter of Transmittal and Notice of
Guaranteed Delivery to any person upon request. All other requests for materials
shall be referred to the Issuer. The Exchange Agent shall not offer any
concessions or pay any commissions or solicitation fees to any brokers, dealers,
banks or other persons or engage any persons to solicit tenders.
18. Tax Matters. The Exchange Agent shall file with the Internal Revenue
Service and send to holders Form 1099 reports regarding principal and interest
payments on Notes which the Exchange Agent has made in connection with the
Exchange Offer, if any. Any questions with respect to any tax matters relating
to the Exchange Offer shall be referred to the Issuer, and the Exchange Agent
shall have no duty with respect to any such matter; provided that the Exchange
Agent shall cooperate with the Issuer in attempting to resolve such questions.
19. Reports. Within five (5) days after the Expiration Date, the Exchange
Agent shall furnish to the Issuer a final report showing the disposition of the
New Notes.
20. Fees and Expenses. The Issuer will pay the Exchange Agent its
reasonable fees and expenses, including reasonable counsel fees and
disbursements, as set forth in Exhibit E.
21. Concerning the Exchange Agent. The Exchange Agent:
A. shall have no duties or obligations other than those specifically set
forth in this Agreement;
B. will make no representation and will have no responsibility as to the
validity, value or genuineness of the Exchange Offer, shall not make any
recommendation as to whether a holder of Old Notes should or should not tender
its Old Notes and shall not solicit any holder for the purpose of causing such
holder to tender its Old Notes;
C. shall not be obligated to take any action hereunder which may, in the
Exchange Agent's sole judgment, involve any expense or liability to the Exchange
Agent unless it shall have been furnished with indemnity against such expense or
liability which, in the Exchange Agent's reasonable judgment, is adequate;
D. may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, instruction, letter, telegram or other document, or
any security, delivered to the Exchange Agent and reasonably believed by the
Exchange Agent to be genuine and to have been
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signed by the proper party or parties;
E. may reasonably rely on and shall be protected in acting upon the
written instructions of the Issuer or its counsel (or their representatives);
F. shall not be liable for any claim, loss, liability or expense, incurred
without the Exchange Agent's negligence, bad faith or willful misconduct,
arising out of or in connection with the administration of the Exchange Agent's
duties hereunder; and
G. may consult with counsel, and the advice of such counsel or any opinion
of counsel shall be full and complete authorization and protection in respect of
any action reasonably taken, suffered or omitted by the Exchange Agent hereunder
in accordance with the advice of such counsel or any opinion of counsel.
22. Indemnification.
A. The Issuer covenants and agrees to indemnify and hold harmless the
Exchange Agent, its directors, officers, employees and agents (the "Indemnified
Persons") against any and all losses, damages, costs or expenses (including
reasonable attorneys' fees and court costs), arising out of or attributable to
its performance as the Exchange Agent hereunder, provided that such
indemnification shall not apply to losses, damages, costs or expenses incurred
due to negligence, bad faith or willful misconduct of the Exchange Agent, or the
Exchange Agent's breach of this Agreement. The Exchange Agent shall notify the
Issuer in writing of any asserted claim against the Exchange Agent or of any
other action commenced against the Exchange Agent, reasonably promptly after the
Exchange Agent shall have received any notice of such claim or shall have been
served with a summons in connection therewith.
B. The Exchange Agent agrees that, without the prior written consent of
the Issuer, it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect of
which indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not any Indemnified Persons is an actual
or potential party to such claim, action or proceeding).
23. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
24. Notices. Notices or other communications pursuant to this Agreement
shall be delivered by facsimile transmission, reliable overnight courier or by
first-class mail, postage prepaid, addressed as follows:
To the Issuer at:
Xxxxx North America Finance, Inc.
c/o Xxxxx Xxxxxxx Incorporated
0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
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With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Or to the Exchange Agent at:
Bank One, National Association
0000 Xxxxxxx Xxxxxxx, Xxxxx X0-XX0-0000
Xxxxxxxx, Xxxx 00000
Attention: Exchanges
Telephone: (000) 000-0000
Fax: (000) 000-0000
Or to such address as either party shall provide by notice to the other party.
25. Change of the Exchange Agent. The Exchange Agent may resign from its
duties under this Agreement by giving to the Issuer thirty (30) days prior
written notice. If the Exchange Agent resigns or becomes incapable of acting as
the Exchange Agent and the Issuer fails to appoint a new exchange agent within a
period of thirty (30) days after it has been notified in writing of such
resignation or incapacity by the Exchange Agent, the Issuer shall appoint a
successor exchange agent or assume all of the duties and responsibilities of the
Exchange Agent. Any successor exchange agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as the Exchange Agent without any further act or deed; but the Exchange Agent
shall deliver and transfer to the successor exchange agent any Property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for such purpose.
26. Miscellaneous. Neither party may transfer or assign its rights or
responsibilities under this Agreement without the written consent of the other
party hereto; provided, however, that the Exchange Agent may transfer and assign
its rights and responsibilities hereunder to any of its affiliates reasonably
acceptable to the Issuer and otherwise eligible to act as the Exchange Agent
and, upon reasonable prior notice to the Exchange Agent, the Issuer may transfer
and assign its rights and responsibilities hereunder to any successor by merger
or consolidation, any purchaser of all or substantially all of the common stock
of the Issuer, or any purchaser of all or substantially all of the Issuer's
assets. This Agreement may be amended only in writing signed by both parties.
Any New Notes which remain undistributed after the Expiration Date shall be
cancelled and delivered to the Issuer upon demand, and any Old Notes which are
tendered thereafter shall be promptly returned by the Exchange Agent to the
tendering party. Except for Sections 20 and 22, this Agreement shall terminate
on the 31st day after the Expiration Date.
27. Parties in Interest. 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
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shall confer upon any other person any right, benefits or remedy of any nature
whatsoever under or by reason of this Agreement. Without limitation to the
foregoing, the parties hereto expressly agree that no holder shall have any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
28. Entire Agreement; Headings. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers thereunto authorized as of the date first written
above.
XXXXX NORTH AMERICA FINANCE, INC.
By:
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Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as the Exchange Agent
By:
------------------------------
Name:
Title:
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Exhibit E
Schedule of Fees
Per letter of transmittal mailed or processed: $150.00
Minimum fee: $5,000.00
Extraordinary services and special requests: by appraisal
Reasonable out of pocket expenses incurred will be billed for reimbursement at
invoiced cost
The minimum fee of $5,000.00 shall be due and payable upon execution of the
Exchange Agent Agreement. The remaining balance shall be due and payable upon
receipt of the Exchange Agent's invoice therefor.
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