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EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
EXCHANGE OFFER
As of ___________, 0000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxx Xxxxx Partners, L.P., a Delaware limited partnership, and Xxxxx Xxxxx
Finance Corp., a Michigan corporation (collectively, the "Issuers"), are
offering (the "Exchange Offer") to exchange $1,000 principal amount of their 10
3/4% Series B Senior Notes due 2004 (the "Exchange Notes") for each $1,000
principal amount of their 10 3/4% Senior Notes due 2004 (the "Notes"), upon the
terms and conditions set forth in the Prospectus dated ________________, 1997
(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 Issuers to any and all holders of the
Notes who were such on or about __________________, 1997 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
_____________________ (the "Initial Expiration Date") or at any subsequent
time to which the Issuers may extend the Exchange Offer. The Issuers
expressly reserve 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. However,
although delivery of Notes may be effected through book-entry transfer,
the Letter of Transmittal (or a facsimile thereof) with any required
signature guarantees and any other documents must, in any case, be
received by you in order for such Notes to be properly tendered.
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.
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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.
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 Issuers in the first
instance, but final decisions on all matters shall be made by the Issuers.
The Issuers 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 Issuers'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 Issuers'
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 Issuers 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 Issuers, 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, any of
Xxxxxxx X. Xxxxx, C. Xxxxxxx Xxxxxxx or Xxxxxx X. Xxxxxxxxx, each an
officer of the Issuers, at 000-000-0000, and such other persons as any 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
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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 confirm such advice to one person
in each of the above groups in writing, to be transmitted by telecopier,
pouch or other special form of delivery. You shall also inform the those
persons, and such other persons as may be designated by any of them, upon
request made from time to time, of such other information as any 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 whether you
have received executed Letters of Transmittal 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 either Issuer or such other persons as either
of them 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 Issuers 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 Issuers not to exchange any Notes tendered shall be given in
writing by the Issuers to you.
12. If, pursuant to the Exchange Offer, the Issuers do not accept for exchange
all or part of the Notes tendered, you shall promptly, after receipt of
instructions from the Issuers, 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 Issuers explaining the reasons for their return.
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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 Issuers from loss or liability
arising out of the non-receipt or non-delivery of such certificates.
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 Issuers 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
instructions from any of the persons set forth in clause (a) of
paragraph 7 hereof 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
Issuers), 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.
15. It is understood and agreed that the securities (the "Property") to be
deposited with or received by you as Exchange Agent from the Issuers and
tendering noteholders constitute a special trust account, held solely for
the benefit of the Issuers and the noteholders tendering Notes, as their
respective interests may appear. Such Property need not be segregated from
the securities, money, assets or properties of you or any other person,
firm or corporation except to the extent
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required by law. You hereby waive any and all rights of lien, attachment
or setoff whatsoever, if any, against the Property 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 Issuers, jointly and severally, covenant and agree 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 Issuers, 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. The
Issuers will be entitled to participate at their own expense in the
defense. If the Issuers so elect 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 Issuers agree, the Issuers will assume the defense of any
suit brought to enforce any such claim. In the event the Issuers assume
the defense of any such suit, the Issuers may select counsel of their own
choosing for such purpose provided such counsel is reasonably satisfactory
to you, and the Issuers 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 Issuers, 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 Issuers' expense. The
Issuers 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 New York
applicable to agreements made and to be performed entirely within such
state and shall inure to the benefit of, and the obligations created
hereby shall be binding upon, the successors and assigns of the parties
hereto.
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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
Issuers 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,
Xxxxx Xxxxx Partners, L.P. Xxxxx Xxxxx Finance Corp.
By: Xxxxx Communications Partners,
a Michigan co-partnership,
its General Partner By:
Xxxxxxx X. Xxxxx
By: Jamesco, Inc., a Michigan President
corporation, its Partner
By:
Xxxxxxx X. Xxxxx
President
Accepted and agreed to as of the
date first above written:
United States Trust Company of
New York, as Agent
By:
Name:
Title:
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SCHEDULE A
XXXXX XXXXX PARTNERS, L.P.
SCHEDULE OF FEES
TO ACT AS
EXCHANGE AGENT
$100 MM 144A Debt Issue
As Exchange Agent $4,500.00
(applicable only upon
conversion to public debt)
