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Exhibit 99.3
EXCHANGE AGENT AGREEMENT
EXCHANGE OFFER
As of June 10, 1998
U.S. Bank Trust National Association
Xxxx Building, Suite 740
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Newcor, Inc., a Delaware corporation (the "Issuer"), is offering (the "Exchange
Offer") to exchange $1,000 principal amount of its 9 7/8% Series B Senior
Subordinated Notes due 2008 (the "Exchange Notes") for each $1,000 principal
amount of its 9 7/8% Senior Subordinated Notes due 2008 (the "Notes"), upon the
terms and conditions set forth in the Prospectus dated June 10, 1998 (the
"Prospectus") and the related Letter of Transmittal (the "Letter of
Transmittal") and Notice of Guaranteed Delivery (the "Notice of Guaranteed
Delivery"), copies of all of which are attached to this Agreement as Exhibit A.
The Exchange Offer is being made by the Issuer to any and all holders of the
Notes who were such on or about June 10, 1998 or who become such prior to the
Expiration Date of the Exchange Offer. The Letter of Transmittal that will
accompany the Prospectus, which is addressed to you and is to be used by holders
of the Notes to accept the Exchange Offer, contains instructions with respect to
the delivery of certificates for, or book-entry delivery of, Notes tendered in
the Exchange Offer.
This will confirm our agreement with you to act as Exchange Agent in connection
with the Exchange Offer. In such capacity, you will act as agent for the holders
of the Notes to receive and exchange Exchange Notes for Notes tendered pursuant
to the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following:
1. The Exchange Offer will expire at 5:00 p.m., New York City time, on July
10, 1998 (the "Initial Expiration Date") or at any subsequent time to
which the Issuer may extend the Exchange Offer. The Issuer expressly
reserves the right to extend the Exchange Offer from time to time by
giving written notice to you before 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date. In this
Agreement, "Expiration Date" means the later of the Initial Expiration
Date or the latest time and date to which the Exchange Offer may be so
extended.
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2. Promptly following the commencement of the Exchange Offer, you will
establish a book entry account with The Depository Trust Corporation
("DTC") for purposes of the Exchange Offer. Any financial institution that
is a participant in DTC may make book-entry delivery of Notes by causing
DTC to transfer such Notes into the account maintained by you pursuant to
this paragraph in accordance with procedures for such transfer.
3. You are to examine the Letters of Transmittal, the certificates for Notes
and the other documents delivered or mailed to you in connection with
tenders of Notes to ascertain whether they are filled out and executed in
accordance with the instructions set forth in the Letter of Transmittal.
If any Letter of Transmittal has been improperly completed or executed,
or the certificates for Notes accompanying such Letter of Transmittal are
not in proper form for transfer (as required by the instructions) or are
not received, or no Automated Tender Offer Program ("ATOP") message with
respect to delivery of book-entry Notes has been received, or if some
other irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to take such action as may be necessary
to cause such irregularity to be corrected.
4. If a holder desires to tender Notes pursuant to the Exchange Offer but
such holder's certificates for such Notes are not immediately available,
or time will not permit all required documents to reach you before the
Expiration Date, or the procedure for book-entry tender cannot be
completed on a timely basis, such Notes may nevertheless be tendered if
all the following conditions are satisfied:
(i) the tender is made by or through an Eligible Institution (as
defined in the Prospectus);
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery is received by you as provided below before the
Expiration Date; and
(iii) the certificates for all tendered Notes, in proper form for
transfer (or a confirmation of a book-entry transfer of such
Notes into your account at DTC), together with a properly
completed and duly executed Letter of Transmittal (or
facsimile) and any other documents required by the Letter of
Transmittal, are received by you within three New York Stock
Exchange trading days after the Expiration Date.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to you and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
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If necessary or advisable, you may communicate with Eligible Institutions which
have tendered Notes by means of the procedures described above to ascertain
additional information in connection therewith.
Notwithstanding any other provision of this Agreement, exchange for Notes
tendered pursuant to the Exchange Offer will in all cases be made only after
timely receipt by you of certificates for such Notes (or a confirmation of a
book-entry transfer), a properly completed and duly executed Letter of
Transmittal (or a facsimile) and any other documents required by the Letter of
Transmittal.
5. Determination of all questions as to the validity, form, eligibility
(including timeliness of receipt) and acceptance of any Notes tendered or
delivered shall be determined by you on behalf of the Issuer in the first
instance, but final decisions on all matters shall be made by the Issuer.
The Issuer will reserve in the Prospectus the absolute right to reject any
or all tenders of Notes not properly tendered or any Notes the acceptance
of which would, in the opinion of the Issuer's counsel, be unlawful and to
waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any Notes, and the Issuer's interpretation
of the terms and conditions of the Exchange Offer will be final and
binding.
6. Exchange Notes issuable in exchange for Notes duly tendered shall be
delivered as soon as practicable after notice of acceptance of the Notes
by the Issuer is received by you.
Notes tendered pursuant to the Exchange Offer may be withdrawn as set
forth in the section of the Prospectus entitled "The Exchange Offer --
Withdrawals of Tenders." As promptly as possible after notification of
such withdrawal, you shall return the certificates for such Notes to, or
in accordance with the instruction of, such noteholder and such Notes
shall no longer be considered properly tendered. All questions as to the
form and validity of notices of withdrawal, including timeliness of
receipt, shall be determined by the Issuer, whose determination shall be
final and binding.
7. On each business day up to and including the Expiration Date you shall
advise by telephone, not later than 5:00 p.m., New York City time, either
of Xxxx X. Xxxxxx or W. Xxxx Xxxxxxxxx, each an employee of the Issuer, at
(000) 000-0000, and such other persons as either of them may direct in
writing, of the principal amount of Notes which have been duly tendered on
that day, stating separately the principal amount of Notes tendered by
book-entry delivery, the principal amount of Notes tendered by Notice of
Guaranteed Delivery, the principal amount of Notes tendered about which
you have questions concerning validity and the cumulative principal amount
of Notes tendered through the time of such call. Promptly thereafter (by
the next business day), if requested, you shall
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confirm such advice to one of the above named persons in writing, to be
transmitted by telecopier, pouch or other special form of delivery. You
shall also inform one of the above named persons, and such other persons
as may be designated by either of them, upon request made from time to
time, of such other information as either of them may request, including,
without limitation, the names and addresses of registered holders of
tendered Notes.
8. Originals of Letters of Transmittal or facsimile transmissions submitted
in lieu of Letters of Transmittal pursuant to the Prospectus prior to the
Expiration Date shall be preserved by you in accordance with your standard
practices. If any Letters of Transmittal or facsimiles are received by you
on or after the Expiration Date, such documents shall be stamped by you to
show the date and time of receipt. You shall keep a record of all
electronic communications with respect to Notes tendered by ATOP.
9. You shall follow and act upon these instructions, and upon any further
instructions given to you in connection with the Exchange Offer, any of
which may be given to you by the Issuer or such other persons as it may
authorize.
10. If, pursuant to the provisions of Instruction 3 of the Letter of
Transmittal, fewer than all the Notes evidenced by any certificate
submitted to you are to be tendered, you shall, promptly after the
Expiration Date, return a new certificate for the remainder of such Notes
not being tendered to, or in accordance with the instructions of, each of
such noteholders who has made a partial tender of Notes.
11. The Issuer shall not be required to exchange any Notes tendered if there
shall occur any of the events set forth in the Section of the Prospectus
entitled "The Exchange Offer -- Conditions" or if any of the other
conditions set forth in the Prospectus are not met. Notice of any decision
by the Issuer not to exchange any Notes tendered shall be given in writing
by the Issuer to you.
12. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Notes tendered, you shall promptly, after
receipt of instructions from the Issuer, return the deposited certificates
for such Notes or, as the case may be, issue an ATOP message with respect
to Notes tendered by book-entry delivery, with any related required
documents that are in your possession, to or in accordance with the
instructions of the persons who deposited the same, together with a notice
in form satisfactory to the Issuer explaining the reasons for their
return.
13. Certificates for unexchanged Notes, or newly issued certificates for
Exchange Notes, shall be forwarded promptly by first-class mail under a
blanket surety bond protecting you and the Issuer from loss or liability
arising out of the non-receipt or non-delivery of such certificates.
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14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of the Notes or any certificates for 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;
(b) shall not initiate any legal action hereunder without written
approval of the Issuer and then only upon such reasonable indemnity
as you may request;
(c) may 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 believed by you to be
genuine and to have been signed by the proper party or parties;
(d) may rely on and shall be protected in acting upon written or oral
instructions from either of the persons set forth in Section 7 with
respect to any matter relating to your actions as Exchange Agent
specifically covered by this Agreement, or supplementing or
qualifying any such actions;
(e) may consult counsel satisfactory to you (including counsel for the
Issuer), and the written advice or opinion 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 of such counsel;
(f) shall not at any time solicit any person to tender Notes pursuant to
the Exchange Offer or otherwise advise any person tendering 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 either the Notes or the Exchange Notes; and
(g) shall have no duties or obligations other than those specifically set
forth herein or in an exhibit hereto.
15. It is understood and agreed that the securities to be deposited with or
received by you as Exchange Agent from the Issuer and tendering
noteholders constitute a special trust account, held solely for the
benefit of the Issuer and the noteholders tendering Notes, as their
respective interests may appear. Such securities need not be segregated
from the securities, money, assets or properties of you or any other
person, firm or corporation except to the extent required by law. You
hereby waive any and all rights of lien, attachment or setoff whatsoever,
if any, against
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the securities so to be deposited, whether such rights arise by reason of
statutory or common law, by contract or otherwise.
16. For services rendered as Exchange Agent hereunder, you shall be entitled
to payment as specified in Schedule A attached hereto.
17. The Issuer covenants and agrees to indemnify you and to hold you harmless
against any costs, expenses (including reasonable fees of your legal
counsel), losses or damages which may be paid, incurred or suffered by you
or to which you may become subject, arising from or out of, directly or
indirectly, any claim or liability resulting from your actions as Exchange
Agent pursuant hereto; provided, that such covenant and agreement does not
extend to, and you shall not be indemnified and held harmless with respect
to, such costs, expenses, losses and damages incurred or suffered by you
as a result of, or arising out of, your negligence, bad faith or willful
failure to perform your obligations hereunder. Promptly after you have
received any written assertion of a claim or have been served with a
summons or other first legal process giving information as to the nature
and basis of the claim, you shall notify the Issuer, by letter or by cable
or telex confirmed by letter, of the written assertion of such claim
against you or of any action commenced against you or of the service of
any summons on you, or other first legal process giving information as to
the nature and basis of the claim. If you fail to supply the Issuer with
the notification required pursuant to the preceding sentence, the Issuer
shall not be liable to you under this Section 17 to the extent that your
failure to so give notification actually prejudiced the Issuer or
otherwise increased its obligations under this Section 17. The Issuer will
be entitled to participate at its own expense in the defense. If the
Issuer so elects at any time after receipt of such notice and agree in
writing that such claim is a claim for which you are entitled to be
indemnified and held harmless hereunder or if you in such notice request
and the Issuer agrees, the Issuer will assume the defense of any suit
brought to enforce any such claim. In the event the Issuer assumes the
defense of any such suit, the Issuer may select counsel of its own
choosing for such purpose provided such counsel is reasonably satisfactory
to you, and the Issuer will not be liable for the fees and expenses of any
additional counsel thereafter retained by you, except that if you have
reasonably concluded that there may be legal defenses available to you
which are not available to the Issuer, you shall have the right to select
separate counsel and to assume such legal defense and to otherwise
participate in the defense of such action at the Issuer's expense. The
Issuer shall not be required to pay for any settlement made without their
consent.
18. This Agreement and your appointment as Exchange Agent shall be governed
and construed in accordance with the laws of the State of Michigan
applicable to agreements made and to be performed entirely within such
state and shall inure to
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the benefit of, and the obligations created hereby shall be binding upon,
the successors and assigns of the parties hereto.
19. This Agreement may be executed in separate counterparts, each of which
when executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
20. This Agreement may not be amended except in a writing executed by the
Issuer and you.
If the foregoing is acceptable to you, please acknowledge receipt of this letter
and confirm the arrangements herein provided by signing and returning the
enclosed copy hereof.
Sincerely,
Newcor, Inc.
By: /s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Vice President Finance, Treasurer
and Chief Financial Officer
Accepted and agreed to as of the
date first above written:
U.S. Bank Trust National Association
By: /s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice President
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SCHEDULE A
NEWCOR, INC.
SCHEDULE OF FEES
TO ACT AS
EXCHANGE AGENT
As Exchange Agent $1,500.00
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Exhibit A
See Following Documents
A-1
