EXHIBIT 99.3
DRAFT
4/22/97
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
___________________________________________________________________________
corporation (the "Company"), is offering to exchange (the "Exchange Offer")
its _____________ (the "Old Securities") for an equal principal amount of
its _____________ (the "New Securities" and, together with the Old
Securities, the "Securities"), pursuant to a prospectus (the "Prospectus")
included in the Company's Registration Statement on Form S-4 (File No.
_______________), as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission. The Term "Expiration Date" shall mean
5:00 p.m., New York City time, on ___________, unless the Exchange Offer is
extended as provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended. Upon execution of this Agreement, you will act as the exchange
agent for the Exchange Offer (the "Exchange Agent"). A copy of the
Prospectus included in the Registration Statement is attached hereto as
EXHIBIT A. Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter
of Transmittal"), the form of the notice of guaranteed delivery (the
"Notice of Guaranteed Delivery"), the form of letter to brokers and the
form of letters to clients (collectively, the "Tender Documents") to be
used by holders of Old Securities (collectively, the "Holders") in order to
receive New Securities pursuant to the Exchange Offer are attached hereto
as EXHIBIT B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent,
you are to act at all times in good faith and in accordance with the
following provisions of this Agreement.
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter,
and to make subsequent mailings thereof to any persons who become Holders
prior to the Expiration Date and to any persons who may from time to time
request such documents. All mailings pursuant to this Section 1 shall be
by first class mail, postage prepaid, unless otherwise specified by the
Company. You shall also accept and comply with telephone requests for
information relating to the Exchange Offer provided that such information
shall relate only to the procedures for tendering Old Securities in (or
withdrawing tenders of Old Securities from) the Exchange Offer. All other
requests for information relating to the Exchange offer shall be directed
to the Company, Attention: ____________________, at the address set forth
in Section 24 hereof.
2. You are to examine the Letters of Transmittal and the Old
Securities and other documents delivered or mailed to you, by or for the
Holders, prior to the Expiration Date, to ascertain whether (i) the Letters
of Transmittal are properly executed and completed in accordance with the
instructions set forth therein, (ii) the Old Securities are in proper form
for transfer and (iii) all other documents submitted to you have been
properly executed and delivered and otherwise 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 will endeavor to notify the tendering
Holder of such irregularity and as to the appropriate means of resolving
the same and to take any other action that you consider necessary or
advisable to cause the irregularity to be corrected. 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 Old Securities or
as to any other irregularity in connection with the submission of Letters
of Transmittal and/or Old Securities and other documents in connection with
the Exchange offer, shall be made by the officers of, or counsel for, the
Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall
be final and binding.
3. At the written request of the Company or its counsel, you shall
notify tendering Holders of Old Securities in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any such
termination, at the request of the Company or its counsel, you will return
all tendered Old Securities to the persons entitled thereto, at the expense
of the Company.
4. Tender of the Old Securities may be made only as set forth in the
Tender Documents and in the section of the Prospectus captioned "THE
EXCHANGE OFFER." Notwithstanding the foregoing, tenders which an officer
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of the Company shall approve in writing as having been properly tendered
shall be considered to be properly tendered. Letters of Transmittal and
Notices of Guaranteed Delivery shall be recorded by you as to the date and
time of receipt and shall be preserved and retained by you at the Company's
expense for six years. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company. New
Securities are to be issued in exchange for properly tendered and accepted
Old Securities pursuant to the Exchange Offer only (i) against deposit with
you prior to the Expiration Date or, in the case of a tender in accordance
with the guaranteed delivery procedures outlined in the Tender Documents,
within three New York Stock Exchange trading days after the Expiration Date
of the Exchange Offer, of certificates (or a book-entry confirmation)
representing the properly tendered and accepted Old Securities together
with executed Letters of Transmittal and other documents required by the
Exchange Offer or (ii) in the event that 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 you or
the Tender Documents.
You are hereby directed to establish an account with respect to
the Old Securities at The Depositary Trust Company (the "Book Entry
Transfer Facility") within two days after the date of the Prospectus in
accordance with SEC regulations. Any financial institution that is a
participant in the Book Entry Transfer Facility system may, until the
Expiration Date, make book-entry delivery of the Old Securities by causing
the Book Entry Facility to transfer such Old Securities into your account
in accordance with the procedure for such transfer established by the Book
Entry Transfer Facility. In every case, however, a Letter of Transmittal
(or a manually executed facsimile thereof) or an Agent's Message, properly
completed and dully executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you
prior to the Expiration Date or the guaranteed delivery procedures
described in the Tender Documents must be complied with.
5. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to _____________ of the Company and
any other person or persons that 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
number of Old Securities which have been tendered pursuant to the Exchange
Offer and giving cumulative totals as to items properly received. In
addition, you will inform and cooperate in making available to the Company
and any other person or persons designated by the Company any other
information that it or he or she reasonably requests from time to time
prior to the Expiration Date. Such cooperation shall include, without
limitation, the granting by you to the Company and such person or persons
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
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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. Promptly after the Expiration Date you shall prepare and deliver to
the Company a final report listing the aggregate principal amount of Old
Securities properly tendered and the aggregate principal amount of Old
Securities improperly tendered.
6. Upon satisfaction or waiver by the Company of the conditions of
the Exchange Offer, an officer of 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 Old Securities properly tendered and you,
on behalf of the Company, will promptly exchange such Old Securities for
New Securities in accordance with the procedures set forth in this
Agreement, the Tender Documents and in the section of the Prospectus
captioned "THE EXCHANGE OFFER." You will hold all items which are
deposited for tender with you after 5:00 p.m., New York City time, on the
Expiration Date pending such notification from an officer of the Company.
Delivery of New Securities will be made on behalf of the Company by you at
the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered
promptly after notice of acceptance of the Old Securities by the Company as
provided above; provided, however, that in all cases, Old Securities
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old Securities (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility),
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) or an Agent's Message with any required signature guarantees and
any other required documents. You shall issue New Securities only in
denominations of $1,000 or any integral multiple thereof.
7. If any Holder shall report to you that his or her failure to
surrender Old Securities registered in his or her name is due to the loss
or destruction of a certificate or certificates, you shall request such
Holder (i) to furnish to you an affidavit of loss and, if required by the
Company, a 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 promptly report to the Company the names of all Holders who claim
that their Old Securities have been lost or destroyed and the principal
amount of such Old Securities.
8. As soon as practicable after receipt of the notice from the
Company described in Section 6 hereof, you shall mail or deliver to each
Holder the New Securities that such Holder may be entitled to receive and
you shall cancel the Old Securities submitted to you or returned by DTC in
connection with ATOP. Such canceled Notes shall be forwarded to the
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Company at the address set forth in Section 24 hereof. You shall notify
the Company as to any Old Securities received within 30 days after the
Expiration Date and accept and comply with the Company's instructions with
respect to the disposition of those Old Securities. You shall return all
Old Securities received after such 30-day period to the persons entitled
thereto.
9. 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, reasonable attorneys' 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.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage
or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein, in the Exhibits attached hereto, in the
Tender Documents or in the section of the Prospectus captioned "THE
EXCHANGE OFFER" 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
Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Securities deposited with you hereunder or of any
New Securities, any Tender Documents or other documents prepared by the
Company in connection with the Exchange Offer, and you will make no
representation as to such validity, accuracy, sufficiency, value or
genuineness;
(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 an indemnity reasonably
satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions of any officer of the Company with respect to any matter
relating to your acting as Exchange Agent specifically covered by this
Agreement or supplementing or qualifying any such action;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full and
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complete authorization and protection in respect of any action taken by you
hereunder in good faith and in accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of
the Exchange Offer or as to the market value or decline or appreciation in
market value of any Old Securities or New Securities; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
you and your officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified Party")
against any loss, liability or reasonable expense of any nature (including
reasonable attorneys' and other fees and expenses) incurred in connection
with the administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; PROVIDED, HOWEVER, such Indemnified
Party shall notify the Company 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; provided, however,
that failure to so notify the Company shall not relieve the Company of any
liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the
Company. The Company shall be entitled to participate at its own expense
in the defense of any such claim or legal action and if the Company so
elects or if the Indemnified party in such notice to the Company so
directs, the Company shall assume the defense of any suit brought to
enforce any such claim. In the event the Company assumes such defense, the
Company shall not be liable for any fees and expenses thereafter incurred
by such Indemnified Party, other than such fees and expenses incurred as a
result of the Indemnified Party's need to have separate representation
because of an actual conflict of interest between such Indemnified Party
and the Company. The Company shall have no indemnity obligation with
respect to any settlement or other compromise of an otherwise indemnifiable
loss, liability or expense, if the settlement or other compromise is
effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed if not adverse to the
Company's interests.
13. 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 Tender Documents, Old Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration
Date.
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14. The Company shall not be required to exchange any Old Securities
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 Old
Securities tendered shall be given (and confirmed in writing) by the
Company to you.
15. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
section of the Prospectus captioned "THE EXCHANGE OFFER" or any other
reason, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Old Securities (or effect appropriate book 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.
16. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by you by (a) first-
class certified mail, return receipt requested under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such certificates.
17. 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.
18. This Agreement and your appointment as the Exchange Agent shall
be construed and enforced in accordance with the laws of the State of New
York and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of the parties hereto.
No other person shall acquire or have any rights under or by virtue of this
Agreement.
19. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough
of Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that
all claims in respect of such action or proceeding arising out of or
relating to this Agreement, shall be heard and determined in such a New
York State or federal court. The parties hereby consent to and grant to
any such court jurisdiction over the persons of such parties and over the
subject matter of any such dispute and agree that delivery or mailing of
any process or other papers in the manner provided herein, or in such other
manner as may be permitted by law, shall be valid and sufficient service
thereof.
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20. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement, on the one hand, and the Prospectus
and the Tender Documents, on the other hand, 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, which shall be controlled by this Agreement.
21. This Agreement may be executed in one 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.
22. 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.
23. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Old Securities or New
Securities, funds or property then held by you as Exchange Agent under this
Agreement.
24. All notices and communications hereunder shall be in writing, and
shall be deemed to be duly given if delivered or mailed first class
certified or registered mail, postage prepaid, or telecopied as follows:
If to Company:
and a copy to:
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, NY 10006
Attn.:
Telephone:
Telecopy:
and a copy to:
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or such other address or telecopy number as any of the above may have
furnished to the other parties in writing for such purposes.
25. This Letter Agreement and all of the obligations hereunder shall
be assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy
of this Agreement to the Company.
Very truly yours,
By:________________________________
Title:
Agreed to this ____ day of ______________, 199__
BANKERS TRUST COMPANY
By:______________________________
Title:
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