EXHIBIT 99.3
[6/12/97]
[_________], 1997
EXCHANGE AGENT AGREEMENT
------------------------
First Union National Bank of Virginia
One James Center
Richmond, Virginia 23219
Ladies and Gentlemen:
Tultex Corporation, a Virginia corporation (the "Issuer") proposes to make
an offer (the "Exchange Offer") to exchange up to $75,000,000 aggregate
principal amount of its 9 5/8% Senior Notes due 2007 (the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like amount of its outstanding 9 5/8% Senior Notes due
2007 (the "Old Notes"), of which $75,000,000 aggregate amount is outstanding.
The terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus dated [_________ ], 1997 (the "Prospectus"), a copy of
which is attached to this Agreement as Attachment A, proposed to be distributed
------------
to all record holders of the Old Notes. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Prospectus.
The Issuer hereby appoints First Union National Bank of Virginia to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to First Union National Bank of
Virginia.
The Exchange Offer is expected to be commenced by the Issuer on or about
[___________], 1997. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Notes to accept the Exchange Offer, and
contains certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., Richmond time, on
[___________], 1997 or on such later date or time to which the Issuer may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Issuer 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., Richmond time, on the next business day after the previously scheduled
Expiration Date.
The Issuer expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old 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 Offer." The Issuer
will give oral (promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.
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 described in the section of the Prospectus captioned "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; and shall generally act in good faith in the
performance of your undertakings hereunder. The Issuer acknowledges that you are
also acting as agent of the tendering security holders under terms of the Letter
of Transmittal.
2. You will establish an account with respect to the Old 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 preexisting 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 Old Notes by causing the Book-Entry Transfer Facility to
transfer such Old 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 Old 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 Old Notes to ascertain
whether: (i) the Letters of Transmittal and any such other documents are fully
executed and properly completed in accordance with instructions set forth
therein and (ii) the Old Notes have otherwise been properly tendered in
accordance with the Letters of Transmittal. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
any of the certificates for Old Notes are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the President and Chief Executive Officer, the
Executive Vice President and General Counsel or the Vice President and Chief
Financial Officer of the Issuer (such approval, if given orally, to be confirmed
in writing) or any other
2
person designated by any such officer of the Issuer in writing, you are
authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the section
of the Prospectus captioned "The Exchange Offer -- Procedures for Tendering" or
in the Letter of Transmittal, and Old Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which
the Issuer or any person designated by the Issuer in writing shall approve as
having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Old Notes
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old 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 Old Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the transfer agent for split-up and return any untendered Old 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.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer will notify you (such notice if given orally, to be
promptly confirmed in writing) of the Issuer's acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and you, on behalf of the
Issuer, will exchange such Old Notes for Exchange Notes pursuant to the
applicable provisions of the Indenture dated as of April 15, 1997 (the
"Indenture"), among the Issuer, First Union National Bank of Virginia, as
trustee, and subsidiaries of the Issuer as Guarantors, and cause such Old Notes
to be canceled. Delivery of Exchange Notes will be made on behalf of the Issuer
by you at the rate of $1,000 principal amount at maturity of Exchange Notes for
each $1,000 principal amount at
3
maturity of the Old Notes tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Old Notes by
the Issuer; provided, however, that in all cases, Old Notes tendered pursuant to
-------- -------
the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old 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 in lieu thereof an Agent's Message), any other required
document and compliance with the applicable requirements of the Indenture. You
shall issue Exchange Capital Securities only in any integral multiples of
$1,000.
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, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date.
10. The Issuer shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Issuer not to exchange any Old Notes tendered
shall be given (such notice, if given orally, shall be promptly confirmed in
writing) by the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"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 Old Notes (or effect the appropriate book-entry transfer of the
unaccepted Old 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 Old Notes or for unaccepted Old
Notes shall be forwarded by (a) first-class mail, return receipt requested,
under a blanket surety bond protecting you, the Issuer 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 Old
Notes, and will
4
not be required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(b) 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 reasonable indemnity;
(c) shall not be liable to the Issuer for any action taken or omitted
by you, or any action suffered by you to be taken or omitted, without
negligence, willful 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 reasonably rely on and shall be 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 rely on and shall be protected in acting upon written or oral
instructions from any designated officer of the Issuer or person designated by
any such officer with respect to the Exchange Offer;
(f) shall not advise any person tendering Old 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 Old Notes; and
(g) may consult with your 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 written opinion of such counsel.
15. You shall take such action as may from time to time be requested
by the Issuer or its counsel (and 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 or the Issuer, to all persons requesting such documents
and to accept and comply with telephone requests 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 Issuer
will furnish you with sufficient copies of such documents at your request. All
other
5
requests for information relating to the Exchange Offer shall be directed to
Suzanne H. Wood, Vice President and Chief Financial Officer, Tultex Corporation,
101 Commonwealth Boulevard, Martinsville, Virginia 24401; (540) 632-2961.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Issuer and Hunton & Williams,
counsel for the Issuer, and such other person or persons as they may request,
daily, and more frequently if reasonably requested, up to and including the
Expiration Date, as to the principal amount of the Old 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 as to items
properly received and items improperly received and items covered by Notices of
Guaranteed Delivery. In addition, you will also inform, and cooperate in making
available to, the Issuer or any such other person or persons as the Issuer
requests from time to time prior to the Expiration Date of such other
information as they, or he reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Issuer and such person as the
Issuer may request of 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 Issuer 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 from information available to you who failed to tender or
whose tenders were not accepted and the aggregate principal amount of Old Notes
not tendered or Old Notes not accepted and deliver said list to the Issuer at
least seven days prior to the Expiration Date. You shall also prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of Old Notes accepted and deliver said list to the Issuer.
17. 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
paid a fee of $[ ] and you shall be reimbursed for your expenses (including fees
and expenses of your counsel, which fees are expected under normal circumstances
to be not in excess of $[ ], incurred in connection with the Exchange Offer.
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 duties 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.
6
20. The Issuer agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys'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, endorsement, 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 Old 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 Old Notes; provided, however, that the Issuer
-------- -------
shall not be liable for indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of your negligence, willful breach of
this Agreement, willful misconduct or bad faith. In no case shall the Issuer be
liable under this indemnity with respect to any claim against you unless the
Issuer 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 Issuer shall be entitled to participate
at its own expense in the defense of any such claim or other action, and, if the
Issuer so elects, the Issuer shall assume the defense of any suit brought to
enforce any such claim. In the event that the Issuer shall assume the defense of
any such suit, the Issuer shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Issuer shall retain
counsel reasonably satisfactory to you to defend such suit. You shall not
compromise or settle any such action or claim without the consent of the Issuer.
21. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the Commonwealth
of Virginia applicable to agreements made and to be performed entirely within
such state, and 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.
7
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:
If to the Issuer:
Tultex Corporation
101 Commonwealth Boulevard
Martinsville, Virginia 24401
Facsimile: 540/632-8000
Attention: Kathy H. Rogers, Corporate Secretary
With a copy to:
Hunton & Williams
951 East Byrd Street
Riverfront Plaza, East Tower
Richmond, Virginia 23219
Facsimile: 804/788-8218
Attention: Lathan M. Ewers, Jr.
If to the Exchange Agent:
First Union National Bank of Virginia
One James Center, 2nd Floor
Richmond, Virginia 23219
Facsimile: 804/788-9661
Attention: Dante M. Monakil, Vice President
26. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 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 Issuer any funds or property (including, without
limitation, Letters of Transmittal and any other 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.
8
TULTEX CORPORATION
By:
--------------------
Name: Suzanne H. Wood
Title: Vice President and
Chief Financial Officer
Accepted as the date
first above written:
FIRST UNION NATIONAL BANK OF VIRGINIA
By:
------------------------
Name: Dante M. Monakil
Title: Vice President
9