Exhibit 99.3
DOMINO'S, INC.
30 Frank Lloyd Wright Drive
Post Office Box 997
Ann Arbor, MI 48106-0997
EXCHANGE AGENT AGREEMENT
May 13, 1999
IBJ Whitehall Bank & Trust Company
One State Street
New York, NY 10004
Ladies and Gentlemen:
Domino's, Inc., a Delaware corporation (the "Company"), proposes to make an
offer (the "Exchange Offer") to exchange up to $275,000,000 aggregate principal
amount of its 10d% Senior Subordinated Notes due 2009 (the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for an equal principal amount of its outstanding 10d% Senior
Subordinated Notes due 2009 (the "Original Notes"), of which $275,000,000
aggregate principal amount is outstanding. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus dated May
13, 1999 (the "Prospectus"), a copy of which is attached to this Agreement as
Attachment A, proposed to be distributed to all record holders of the Original
Notes. Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Prospectus
The Company hereby appoints IBJ Whitehall Bank & Trust Company to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to IBJ Whitehall Bank & Trust
Company.
The Exchange Offer is expected to be commenced by the Company on or about
May 17, 1999. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Original Notes to accept the Exchange Offer and
contains instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
June 15, 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, promptly confirmed in writing, or written notice to you no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. An oral notice shall promptly be confirmed in
writing.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Original Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The Exchange
OfferCConditions of the Exchange Offer." The Company will give oral or written
notice of any amendment, termination or nonacceptance to you as promptly as
practicable. Any oral notice shall promptly be confirmed in writing.
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," as
specifically set forth herein and such duties which are necessarily incidental
thereto; provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Original 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
or, if you already have established an account with the Book-Entry Transfer
Facility suitable for the Exchange Offer, you will identify such pre-existing
account to be used in the Exchange Offer, and any financial institution that is
a participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Original Notes by causing the Book-Entry Transfer Facility to
transfer such Original Notes into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, certificates
for the Original Notes and confirmations of book-entry transfers into your
account at the Book-Entry Transfer Facility and any Agent's Message or other
documents delivered or mailed to you by or for holders of the Original Notes to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein and (ii) the Original Notes have otherwise been properly tendered
or are covered by a Notice of Guaranteed Delivery. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Original Notes are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will promptly return the defective items with an
explanation to the presenters.
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4. With the approval of the Chief Executive Officer, President any Vice
President or the Chief Financial Officer of the Company (each an "Authorized
Officer"), you are authorized to waive any irregularities in connection with any
tender of Original Notes pursuant to the Exchange Offer. This approval, if
given orally, is to be promptly confirmed in writing,
5. Tenders of Original Notes may be made only as set forth in the section
of the Prospectus captioned "The Exchange OfferCProcedures for Tendering" or in
the Letter of Transmittal, and Original Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this Section 5, Original Notes which the
Company or any other party designated by the Company in writing shall approve as
having been properly tendered shall be considered to be properly tendered and
such approval, if given orally, shall be confirmed in writing.
6. You shall advise the Company with respect to any Original Notes
delivered subsequent to the Expiration Date and accept its instructions with
respect to the disposition of such Original Notes. Those instructions, if given
orally, are to be promptly confirmed in writing.
7. You shall accept tenders: (a) in cases where the Original 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 to so act is submitted; and (c) from persons other than the
registered holder of Original Notes provided that customary transfer
requirements, including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so indicated, and
as permitted, in the Letter of Transmittal and deliver certificates for Original
Notes to the transfer agent for split-up and return any untendered Original
Notes to the holder, or to such other person as may be designated in the Letter
of Transmittal, as promptly as practicable after expiration or termination of
the Exchange Offer.
For the purposes hereof, to "accept" means to make the examination of
documents presented in connection with a tender pursuant to Section 3 and to
include such tender in your report of accepted tenders made pursuant to
Section 16.
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 promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Notes properly tendered and you, on behalf of the Company, will
exchange such Original Notes for Exchange Notes and cause such Original Notes to
be canceled. Delivery of Exchange Notes will be made on behalf of the Company
by you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of Original Notes tendered promptly after notice of acceptance
of said Original Notes by the
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Company; provided, however, that in all cases, Original Notes tendered pursuant
to the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Original Notes 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, with any required
signature guarantees or Agent's Message in lieu thereof, and any other required
document. 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, tenders of Original Notes pursuant to the Exchange Offer
may be withdrawn by written notice, including a facsimile thereof, received by
you from the holder at any time on or prior the Expiration Date.
10. The Company shall not be required to exchange any Original 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 Original Notes
tendered shall be given by the Company to you. This notice, if given orally,
shall be promptly confirmed in writing.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Original Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange OfferCConditions of the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Original Notes, or
effect the appropriate book-entry transfer of the unaccepted Original Notes, and
return any related required documents and the Letters of Transmittal relating
thereto that are in your possession, to the persons who deposited them.
12. All certificates for reissued Original Notes or for unaccepted or
withdrawn Original Notes shall be forwarded by (a) first-class 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 such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
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
Original Notes, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer;
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provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) shall not be obligated to take any action hereunder other than as
specifically set forth herein to be taken by you, which might in your reasonable
judgment involve any expense or liability, unless you shall have been furnished
with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
gross negligence, misconduct or bad faith on your part, by reason of or as a
result of the administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may conclusively rely on an shall be fully protected
in acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile 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;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may conclusively rely on and shall be fully protected in acting
upon written or oral instructions from an Authorized Officer of the Company with
respect to the Exchange Offer;
(f) shall not advise any person tendering Original 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 any Original Notes; and
(g) may consult with your counsel, including staff 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 by you hereunder
in good faith and in accordance with such advice or written opinion of such
counsel.
15. You shall take such action as may from time to time be requested by
the Company or its counsel, Ropes & Gray, as well as such other action as you
may reasonably deem appropriate, to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery, 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 request 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
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copies of such documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to Harry J. Silverman of the
Company at: 30 Frank Lloyd Wright Drive, Post Office Box 997, Ann Arbor, MI
48106-0997.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Company and Ropes & Gray, counsel for the
Company, and such other person or persons as they may request, weekly, and more
frequently, if reasonably requested, up to and including the Expiration Date, as
to the principal amount of the Original Notes which have been tendered pursuant
to the Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals of the items properly
received, items improperly received and items covered by Notices of Guaranteed
Delivery at the address set forth in Section 25 hereof, or as designated from
time to time. You shall also provide the Company or any such other person or
persons as the Company may request from time to time prior to the Expiration
Date with such other information as the Company or such other person may
reasonably request. In addition, you shall grant to the Company and such
persons as the Company may request, 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 them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose tenders were
not accepted and deliver said list to the Company at least five days prior to
the Expiration Date or at such times as may otherwise be reasonably requested.
You shall also prepare a final list of all persons whose tenders were accepted,
the aggregate principal amount of Original Notes tendered and the aggregate
principal amount of Original Notes accepted and deliver said list to the
Company.
17. All Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and 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. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $2,500 and you shall be entitled to reimbursement of your
expenses, including fees and expenses of your counsel.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your obligations hereunder. 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.
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20. The Company agrees to indemnify and hold you and your officers,
directors, employees and agents harmless, in your capacity as Exchange Agent
hereunder, against any liability, cost or expense, including reasonable
attorney's fees, arising out of or in connection with the acceptance or
administration of your duties hereunder, including, without limitation, in
connection with any act, omission, delay or refusal made by you in reasonable
reliance upon any signature, enforcement, 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 Original 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 Original Notes; provided, however, that 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,
willful breach of this Agreement, willful misconduct or bad faith. 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 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 commencement of action. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action. You shall not compromise or settle any such action or
claim without the consent of the Company. The provisions of this Section 20
shall survive the termination of this Agreement.
21. 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,
without regard to conflicts of law principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon, the successors and
assigns of each of the parties hereto.
22. 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
constitute one and the same agreement.
23. 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.
24. 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. This Agreement may not be modified orally.
25. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
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If to the Company, to:
Domino's, Inc.
30 Frank Lloyd Wright Drive
Post Office Box 997
Ann Arbor, Michigan 48106-0997
Attention: Chief Financial Officer
Telephone: (734) 930-4540
Facsimile: (734) 668-3661
with a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: Mary E. Weber, Esq.
Telephone: (617) 951-7391
Facsimile: (617) 951-7050
If to the Exchange Agent, to:
IBJ Whitehall Bank & Trust Company
One State Street
New York, NY 10004
Attention: Reorganization Operations Dept.
Telephone: (212) 858-2103
Facsimile: (212) 858-2611
with a copy to:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Attention: Capital Markets Trust Services
Telephone: (212) 858-2657
Facsimile: (212) 858-2952
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety (90) days following the Expiration Date. Notwithstanding the
foregoing, Sections 18 and 20 shall survive the termination of this Agreement.
Except as provided in Section 17, upon any termination of this Agreement, you
shall promptly deliver to the Company upon its written order any funds or
property, including, without limitation, Letters of Transmittal and any other
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documents relating to the Exchange Offer, then held by you as Exchange Agent
under this Agreement.
27. 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.
DOMINO'S, INC.
By: ______________________________________
Name:
Title:
Accepted as of the date first above written:
IBJ WHITEHALL BANK & TRUST COMPANY
By: _________________________________________
Name:
Title:
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