Exhibit 99.6
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered
into as of _____________ __, 2003, by and among Toll Brothers Finance Corp., a
Delaware corporation ("Issuer"), Toll Brothers, Inc., a Delaware corporation
("Guarantor"), and Bank One Trust Company, N.A., a national banking association,
as exchange agent ("Exchange Agent").
RECITALS
Issuer proposes to make an offer to exchange, upon the terms and
subject to the conditions set forth in its Prospectus dated _____ __, 2003 (the
"Offering Document") and the accompanying letter of transmittal (the "Letter of
Transmittal"), forms of which are attached hereto as Exhibit A and Exhibit B
(and which, taken together, constitute the "Exchange Offer"), the Issuer's
outstanding 5.95% Senior Notes due 2013 (CUSIP No. 88947E AB 6) (the "Old
Notes") for up to US $250,000,000 of Issuer's 5.95% Senior Notes due 2013 (the
"Exchange Notes" and, together with the Old Notes, the "Notes").
The Exchange Offer will commence as soon as practicable after the
Issuer's Registration Statement on Form S-4 relating to the Exchange Offer is
declared effective under the Securities Act of 1933, as certified in writing to
Exchange Agent by the Issuer (the "Commencement Date") and shall terminate at
5:00 p.m., New York City time, on _________, 2003 (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 before 9:00 a.m., New York City time, on the business day
following the previously scheduled Expiration Date, in which case, the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended.
1. Appointment and Duties as Exchange Agent
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Issuer hereby authorizes Bank One Trust Company, N.A., to act as
Exchange Agent in connection with the Exchange Offer, and Bank One Trust
Company, N.A., hereby agrees to act as Exchange Agent and to perform the
services outlined herein in connection with the Exchange Offer on the terms and
conditions contained herein.
2. Mailing
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A. As soon as practicable after its receipt of certification from the
Issuer as to the Commencement Date, Exchange Agent will mail to each registered
holder of Old Notes, and to other persons as directed in writing by Issuer (each
a "Holder" and collectively, the "Holders") (i) a Letter of Transmittal with
instructions (including instructions for completing a substitute Form W-9), (ii)
the Offering Document and (iii) a Notice of Guaranteed Delivery substantially in
the form attached hereto as Exhibit C (the "Notice of Guaranteed Delivery"), all
in accordance with the procedures described in the Offering Document.
B. Issuer shall supply Exchange Agent with sufficient copies of the
materials described in Paragraph 2.A above to enable Exchange Agent to perform
its duties hereunder.
3. ATOP Registration
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As soon as practicable, Exchange Agent shall establish an account
with DTC in its name to facilitate book-entry tenders of Old Notes through DTC's
Automated Tender Offer Program ("ATOP") for the Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items
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From and after the Commencement, Exchange Agent is hereby authorized
and directed to accept (i) Letters of Transmittal, duly executed in accordance
with the instructions thereto (or a manually signed facsimile thereof), and any
requisite collateral documents from owners of beneficial interests in the Old
Notes ("Beneficial Owners") and (ii) surrendered Old Notes to which such Letters
of Transmittal relate. Exchange Agent is authorized to request from Beneficial
Owners tendering Old Notes such additional documents as Exchange Agent or Issuer
deems appropriate. Exchange Agent is hereby authorized and directed to process
withdrawals of tenders to the extent withdrawal thereof is permitted by the
Exchange Offer.
5. Defective or Deficient Old Notes and Instruments
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A. As soon as practicable after receipt, Exchange Agent will examine
instructions transmitted by DTC ("DTC Transmissions"), Old Notes, Letters of
Transmittal and other documents received by Exchange Agent in connection with
tenders of Old Notes to ascertain whether (i) the Letters of Transmittal are
completed and executed in accordance with the instructions set forth therein (or
that the DTC Transmissions contain the proper information required to be set
forth therein), (ii) the Old Notes have otherwise been properly tendered in
accordance with the Offering Document and the Letters of Transmittal (or that
book-entry confirmations are in due and proper form and contain the information
required to be set forth therein) and (iii) if applicable, the other documents
are properly completed and executed. Alternative, conditional or contingent
tenders will not be considered valid, unless otherwise agreed with the Issuer.
B. If any Letter of Transmittal or other document has been improperly
completed or executed (or any DTC Transmissions are not in due and proper form
or omit required information) or the Old Notes accompanying such Letter of
Transmittal are not in proper form for transfer or have been improperly tendered
(or the book-entry confirmations are not in due and proper form or omit required
information) or if some other irregularity in connection with any tender of any
Old Notes exists, Exchange Agent shall promptly report such information to the
tendering party. If such condition is not promptly remedied, Exchange Agent
shall report such condition to Issuer and await Issuer's direction. All
questions as to the validity, form, eligibility (including timeliness of
receipt), acceptance and withdrawal of any Old Notes tendered or delivered shall
be determined by Issuer, in its sole discretion. Notwithstanding the above,
Exchange Agent shall not incur any liability for failure to give such
notification unless such failure constitutes negligence, bad faith or willful
misconduct.
C. Issuer reserves the absolute right (i) to reject any or all tenders
of any particular Old Notes determined by Issuer not to be properly tendered or
the acceptance or exchange of which may, in the opinion of Issuer or the
Issuer's counsel, be unlawful and (ii) to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the tender of any particular Old
Notes, and Issuer's interpretation of the terms and conditions of the Exchange
Offer (including the Letter of Transmittal and the instructions set forth
therein) will be final and binding.
6. Requirements of Tenders
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A. Tenders of Old Notes shall be made only as set forth in the Letter
of Transmittal, and shall be considered properly tendered only when tendered in
accordance therewith. Notwithstanding the provisions of this paragraph, any Old
Notes that the Chairman, President, Chief Financial Officer, General Counsel or
Chief Accounting Officer of Guarantor, authorized representatives of Issuer,
shall approve as having been properly tendered shall be considered to be
properly tendered.
B. Exchange Agent shall (i) ensure that each Letter of Transmittal and
the related Old Notes or a bond power are duly executed (with signatures
guaranteed where required) by the appropriate parties in accordance with the
terms of the Exchange Offer; (ii) in those instances where the person executing
the Letter of Transmittal (as indicated on the Letter of Transmittal) is acting
in a fiduciary or a representative capacity, ensure that proper evidence of his
or her authority so to act is submitted; and (iii) in those instances where the
Old Notes are tendered by persons other than the Holder of such Old Notes,
ensure that customary transfer requirements, including any applicable transfer
taxes, and the requirements imposed by the transfer restrictions on the Old
Notes (including any applicable requirements for certifications, legal opinions
or other information) are fulfilled.
7. Exchange of the Old Notes
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A. Promptly after the Expiration Date and authentication of the
Exchange Notes by the trustee under the indenture governing the Exchange Notes,
Issuer will deliver the Exchange Notes to Exchange Agent. Upon surrender of the
Old Notes properly tendered and acceptance thereof by Issuer in accordance with
the Exchange Offer, Exchange Agent is hereby directed to deliver or cause to be
delivered Exchange Notes to the Holder of such surrendered and accepted Old
Notes. The principal amount of the Exchange Notes to be delivered to a Holder
shall equal the principal amount of the Old Notes surrendered by such Holder and
accepted.
B. The Exchange Notes issued in exchange for certificated Old Notes
shall be mailed by Exchange Agent, in accordance with the instructions contained
in the Letter of Transmittal, by first class or registered mail, and under
coverage of Exchange Agent's blanket surety bond for first class or registered
mail losses protecting Issuer from loss or liability arising out of the
non-receipt or non-delivery of such Exchange Notes or the replacement thereof.
The Exchange Notes issued in exchange for Old Notes in global book-entry form
shall be delivered in book-entry form through the facilities of DTC.
C. Notwithstanding any other provision of this Agreement, issuance of
the Exchange Notes for accepted Old Notes pursuant to the Exchange Offer shall
be made only after deposit with Exchange Agent of the Old Notes, the related
Letter of Transmittal and any other required documents.
8. Exchange Notes Held in Trust
----------------------------
The Exchange Notes and any cash or other property (the "Property")
deposited with or received by Exchange Agent (in such capacity) from Issuer
shall be held in a segregated account, solely for the benefit of Issuer and
Holders tendering Old Notes, as their interests may appear, and the Property
shall not be commingled with securities, money, assets or property of Exchange
Agent or any other party.
9. Reports to Issuer
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Exchange Agent shall regularly notify, by facsimile or electronic
communication, Issuer as to the principal amount of the Old Notes which have
been duly tendered since the previous report and the aggregate amount tendered
since the Commencement Date daily until the Expiration Date; provided, however,
that if, during any particular day, no additional Old Notes have been tendered,
no additional items have been received by Exchange Agent and such totals have
not changed since the Exchange Agent last provided such information as required
above, the Exchange Agent need not provide the information referred to above in
this Section 9 for such day. Such notice shall be delivered in substantially the
form set forth as Exhibit D.
10. Record Keeping
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Each Letter of Transmittal, Old Note and any other documents
received by Exchange Agent in connection with the Exchange Offer shall be
stamped by Exchange Agent to show the date of receipt (or if Old Notes are
tendered by book-entry delivery, such form of record keeping of receipt as is
customary for tenders through ATOP) and, if defective, the date and time the
last defect was cured or waived by Issuer. Exchange Agent shall cancel any
certificated Old Notes tendered in the Exchange Offer only following (i) their
acceptance and (ii) the issuance of the Exchange Notes in exchange for those Old
Notes. Exchange Agent shall retain all Old Notes and Letters of Transmittal and
other related documents or correspondence received by Exchange Agent until the
Expiration Date. Exchange Agent shall return all such material to Issuer as soon
as practicable after the Expiration Date. If Exchange Agent receives any Letters
of Transmittal after the Expiration Date, Exchange Agent shall return the same
together with all enclosures to the party from whom such documents were
received.
11. Discrepancies or Questions
--------------------------
Any discrepancies or questions regarding any Letter of Transmittal,
Old Note, notice of withdrawal or any other documents received by Exchange Agent
in connection with the Exchange Offer shall be referred to Issuer, and Exchange
Agent shall have no further duty with respect to such matter; provided that
Exchange Agent shall cooperate with Issuer in attempting to resolve such
discrepancies or questions.
12. Transfer of Registration
------------------------
Exchange Notes may be registered in a name other than that of the
Holder of a surrendered Old Note, if and only if (i) the Old Note is (a)
endorsed or accompanied by written instrument of transfer; (b) duly executed by
the Holder; and (c) the signature on the endorsement or instrument of transfer
is guaranteed by an Eligible Institution, as defined in the Letter of
Transmittal, (ii) the person requesting such transfer of registration shall pay
(or shall be billed directly for such transfer taxes) to Exchange Agent any
transfer or other taxes required, or shall establish to Exchange Agent's
satisfaction that such tax is not owed or has been paid and (iii) such other
documents and instruments as Issuer or Exchange Agent require shall be received
by Exchange Agent.
13. Partial Tenders
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If, pursuant to the Exchange Offer, less than all of the principal
amount of any Old Note submitted to Exchange Agent is tendered, Exchange Agent
shall, promptly after the Expiration Date, return, or cause the registrar with
respect to each such Old Note to return, a new Old Note for the principal amount
not being tendered to, or in accordance with the instruction of, the Holder who
has made a partial tender, provided that tenders of Old Notes shall be accepted
only in integral multiples of US$1,000.
14. Withdrawals
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A tendering Holder may withdraw tendered Old Notes as set forth in
the Offering Document, in which event Exchange Agent shall, after proper
notification of such withdrawal, return such Old Notes to, or in accordance with
the instructions of, such Beneficial Owner and such Old Notes shall no longer be
considered properly tendered. Any withdrawn Old Notes may be tendered again by
following the procedures therefor described in the Offering Document at any time
on or prior to the Expiration Date.
15. Rejection of Tenders
--------------------
If, pursuant to the Exchange Offer, Issuer does not accept for
exchange all of the Old Notes tendered by a Holder of Old Notes, Exchange Agent
shall return or cause to be returned such Old Notes to, such Holder of Old
Notes.
16. Cancellation of Exchanged Old Notes
-----------------------------------
Exchange Agent is authorized and directed to cancel all Old Notes
received by it upon delivering the Exchange Notes to tendering Holders of the
Old Notes as provided herein. Exchange Agent shall maintain a record as to which
Old Notes have been exchanged pursuant to Section 7 hereof.
17. Requests for Information
------------------------
Exchange Agent shall accept and comply with telephone, e-mail and
mail requests for information from any Holder concerning the proper procedure to
tender Old Notes. Exchange Agent shall provide copies of the Offering Document
and Letter of Transmittal to any party upon request. All other requests for
information shall be referred to Joseph R. Sicree, Chief Accounting Officer.
Exchange Agent shall not offer any concessions or pay any commissions or
solicitation fees to any brokers, dealers, banks or other persons or engage any
persons to solicit tenders.
18. Tax Matters
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Exchange Agent shall file with the Internal Revenue Service and
send to Holders Form 1099 reports regarding principal and interest payments on
Old Notes which Exchange Agent has made in connection with the Exchange Offer,
if any. Any questions with respect to any tax matters relating to the Exchange
Offer shall be referred to Issuer, and Exchange Agent shall have no duty with
respect to any such matter; provided that Exchange Agent shall cooperate with
Issuer in attempting to resolve such questions.
19. Reports
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Within five (5) days after the Expiration Date, Exchange Agent
shall furnish Issuer a final report showing the disposition of the Exchange
Notes.
20. Fees and Expenses
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Issuer will pay Exchange Agent its reasonable fees and expenses,
including reasonable counsel fees and disbursements, as set forth in Exhibit E.
21. Concerning Exchange Agent
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As exchange agent hereunder, Exchange Agent:
A. shall have no duties or obligations other than those specifically
set forth in this Agreement or as may be subsequently agreed upon in writing by
the Issuer and the Exchange Agent;
B. will make no representation and will have no responsibility as to
the validity, value or genuineness of the Exchange Offer, shall not make any
recommendation as to whether a Beneficial Owner of Old Notes should or should
not tender its Old Notes and shall not solicit any Beneficial Owner for the
purpose of causing such Beneficial Owner to tender its Old Notes;
C. shall not be obligated to take any action hereunder which may, in
Exchange Agent's sole judgment, involve any expense or liability to Exchange
Agent unless it shall have been furnished with indemnity against such expense or
liability which, in Exchange Agent's reasonable judgment, is adequate;
D. may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, instruction, letter, telegram or other document, or
any security, delivered to Exchange Agent and reasonably believed by Exchange
Agent to be genuine and to have been signed by the proper party or parties;
E. may reasonably rely on and shall be protected in acting upon the
written instructions of Issuer (or its authorized representatives) or its
counsel;
F. shall not be liable for any claim, loss, liability or expense,
incurred without Exchange Agent's negligence, bad faith or willful misconduct,
arising out of or in connection with the administration of Exchange Agent's
duties hereunder; and
G. may consult with counsel reasonably acceptable to Issuer and the
advice of such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action reasonably taken, suffered
or omitted by Exchange Agent hereunder in accordance with the advice of such
counsel or any opinion of counsel.
22. Indemnification
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A. Issuer and Guarantor, jointly and severally, covenant and agree to
indemnify and hold harmless Exchange Agent, its directors, officers, employees
and agents (the "Indemnified Persons") against any and all losses, damages,
costs or expenses (including reasonable attorneys' fees and court costs),
arising out of or attributable to its performance as Exchange Agent hereunder,
provided that such indemnification shall not apply to losses, damages, costs or
expenses incurred due to negligence, bad faith or willful misconduct of Exchange
Agent, or Exchange Agent's breach of this Agreement. Exchange Agent shall notify
Issuer and Guarantor in writing of any asserted claim against Exchange Agent or
of any other action commenced against Exchange Agent, reasonably promptly after
Exchange Agent shall have received any notice of such claim or shall have been
served with a summons in connection therewith. The Issuer and the Guarantor
shall be entitled to participate at their own expense in the defense of any such
claim or other action and, if the Issuer and Guarantor so elect, the Issuer and
the Guarantor shall assume the defense of any suit brought to enforce any such
claim. In the event that the Issuer and the Guarantor shall assume the defense
of any such suit, the Issuer and the Guarantor shall not be liable for the fees
and expenses of any additional counsel thereafter retained by the Exchange
Agent, so long as the Issuer and the Guarantor shall retain counsel reasonably
satisfactory to Exchange Agent to defend such suit, and so long as the Exchange
Agent has not determined, in its reasonable judgment, that a conflict of
interest exists between the Exchange Agent and the Issuer and the Guarantor.
B. Exchange Agent agrees that, without the prior written consent of
Issuer and Guarantor, it will not settle, compromise or consent to the entry of
any judgment in any pending or threatened claim, action or proceeding in respect
of which indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not any Indemnified Persons is an actual
or potential party to such claim, action or proceeding).
23. Applicable Law
--------------
This Agreement shall be construed and enforced in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles and the parties consent to the jurisdiction of the courts of the
State of New York in the Borough of Manhattan any action brought to enforce any
rights under this Agreement.
24. Notices
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Notices or other communications pursuant to this Agreement shall be
delivered by facsimile transmission, reliable overnight courier or by
first-class mail, postage prepaid, addressed as follows:
To Issuer at:
Toll Brothers Finance Corp.
3103 Philmont Avenue
Huntingdon Valley, Pennsylvania 19006-4298
Attention: Chief Accounting Officer
Facsimile: (215) 938-8422
Or to Exchange Agent at:
Bank One Trust Company, N.A.
1111 Polaris Parkway, Suite N1-OH1-0184
Columbus, Ohio 43240
Attention: Exchanges
Facsimile: (614) 248-9987
Or to such address as any party shall provide by notice to the other parties.
25. Change of Exchange Agent
------------------------
Exchange Agent may resign from its duties under this Agreement by
giving to Issuer and Guarantor thirty (30) days prior written notice. If
Exchange Agent resigns or becomes incapable of acting as Exchange Agent and
Issuer fails to appoint a new exchange agent within a period of thirty (30) days
after it has been notified in writing of such resignation or incapacity by
Exchange Agent, Issuer shall appoint a successor exchange agent or assume all of
the duties and responsibilities of Exchange Agent. Any successor exchange agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Exchange Agent without any further act or deed;
but Exchange Agent shall deliver and transfer to the successor exchange agent
any Property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for such purpose.
26. Miscellaneous
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No party may transfer or assign its rights or responsibilities
under this Agreement without the written consent of the other party hereto;
provided, however, that Exchange Agent may transfer and assign its rights and
responsibilities hereunder to any of its affiliates reasonably acceptable to
Issuer and Guarantor and otherwise eligible to act as Exchange Agent and, upon
reasonable prior notice to Exchange Agent, Issuer and Guarantor may transfer and
assign its rights and responsibilities hereunder to any successor by merger or
consolidation, any purchaser of all or substantially all of the common stock of
Issuer or Guarantor (as applicable), or any purchaser of all or substantially
all of Issuer's or Guarantor's assets (as applicable). This Agreement may be
amended only in writing signed by each of the parties hereto. Any Exchange Notes
which remain undistributed after the Expiration Date shall be cancelled and
delivered to Issuer upon demand, and any Old Notes which are tendered thereafter
shall be promptly returned by Exchange Agent to the tendering party. Except for
Sections 20 and 22, this Agreement shall terminate on the 31st day after the
Expiration Date.
27. Parties in Interest
-------------------
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefits or
remedy of any nature whatsoever under or by reason of this Agreement. Without
limitation to the foregoing, the parties hereto expressly agree that no Holder
or Beneficial Owner shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
28. Entire Agreement; Headings
--------------------------
This Agreement constitutes the entire understanding of the parties
hereto with respect to the subject matter hereof. The descriptive headings
contained in this Agreement are included for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
29. Counterparts
------------
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Issuer, Guarantor, and Exchange Agent have caused
this Agreement to be signed by their respective officers thereunto authorized as
of the date first written above.
TOLL BROTHERS FINANCE CORP.
By:
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Name:
Title:
TOLL BROTHERS, INC.
By:
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Name:
Title:
BANK ONE TRUST COMPANY, N.A., as
Exchange Agent
By:
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Name:
Title:
Exhibit E
Schedule of Fees
Per letter of transmittal mailed or processed: US$150.00
Minimum fee: US$5,000.00
Extraordinary services and special requests: by appraisal
Reasonable out of pocket expenses incurred will be billed for reimbursement at
invoiced cost
The minimum fee of $5,000.00 shall be due and payable upon execution of the
Exchange Agent Agreement. The remaining balance shall be due and payable upon
receipt of Exchange Agent's invoice therefor.