Exhibit 99.6
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into
as of _______, 2005 by and between Toll Brothers Finance Corp., a Delaware
corporation (the "Issuer") and J. P. Morgan Trust Company, National Association,
a national banking association organized and existing under the laws of the
United States of America, and its successors as exchange agent (the "Exchange
Agent").
RECITALS
The Issuer proposes to make an offer to exchange, upon the terms and
subject to the conditions set forth in the Issuer's official statement for
Exchange Offer dated [insert] (the "Prospectus"), and the accompanying Letter of
Transmittal (as defined below, which together with the Prospectus constitutes
the "Exchange Offer"), its 5.15% Senior Notes due 2015 (CUSIP Nos. 88947E AF 7
and U88894 AC 1) (the "Restricted Securities") for an equal principal amount of
its 5.15% Senior Notes due 2015 (the "Exchange Securities" and, together with
the Restricted Securities, the "Securities.")
The Exchange Offer will commence upon the Issuer's providing written
notice of such commencement to Exchange Agent (the "Effective Time") and shall
terminate at 5:00 p.m., New York City time, on the date described under the
terms set forth in the Prospectus (the "Expiration Date"), unless the Exchange
Offer is extended by the Issuer and the Issuer notifies Exchange Agent of such
extension in writing by 5:00 p.m., New York City time, on the previous
Expiration Date, in which case, the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended. In connection therewith,
the undersigned parties hereby agree as follows:
1. Appointment and Duties as Exchange Agent. Issuer hereby authorizes J.
P. Morgan Trust Company, National Association, to act as Exchange Agent in
connection with the Exchange Offer, and J. P. Morgan Trust Company, National
Association, 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 to Holders of the Restricted Securities.
A. As soon as practicable after its receipt of certification from the
Issuer as to the Effective Time, Exchange Agent will mail to each Holder (as
defined in the indenture dated as of November 22, 2002 by and among the Issuer,
Toll Brothers, Inc., the other guarantors that are parties thereto and the
Exchange Agent, as successor to Bank One Trust Company, N.A., as trustee (as
supplemented or amended, the "Indenture")), and to each participant of The
Depository Trust Company ("DTC") identified by DTC as a beneficial holder of any
Restricted Securities (i) a Letter of Transmittal with instructions (including
instructions for completing a substitute Form W-9), substantially in the form
attached hereto as Exhibit A (the "Letter of Transmittal"), (ii) a Prospectus
and (iii) a Notice of Guaranteed Delivery substantially in the form attached
hereto as Exhibit B (the "Notice of Guaranteed Delivery") all in accordance with
the procedures described in the Prospectus.
B. Issuer shall supply Exchange Agent with sufficient copies of the
Prospectus, Letter of Transmittal and Notice of Guaranteed Delivery to enable
Exchange Agent to perform its duties hereunder. Issuer shall also furnish or
cause to be furnished to Exchange Agent a list of the holders of the Restricted
Securities (including a beneficial holder list from DTC, certificated Restricted
Securities numbers and amounts, mailing addresses, and social security numbers),
unless waived by Exchange Agent.
3. ATOP Registration. As soon as practicable, Exchange Agent shall
establish an account with DTC in its name to facilitate book-entry tenders of
Restricted Securities through DTC's Automated Tender Offer Program (herein
"ATOP") for the Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items. From and after the
Effective Time, 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 Holders of the Restricted Securities and (ii) surrendered
Restricted Securities to which such Letters of Transmittal relate. Exchange
Agent is authorized to request from any person tendering Restricted Securities
such additional documents as Exchange Agent or the Issuer deems appropriate.
Exchange Agent is hereby authorized and directed to process withdrawals of
tenders to the extent withdrawal thereof is authorized by the Exchange Offer.
5. Defective or Deficient Restricted Securities and Instruments. A. As
soon as practicable after receipt, Exchange Agent will examine instructions
transmitted by DTC ("DTC Transmissions"), Restricted Securities, Letters of
Transmittal and other documents received by Exchange Agent in connection with
tenders of Restricted Securities 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 Restricted Securities have otherwise
been properly tendered in accordance with the Prospectus 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 (including the Notice of Guaranteed Delivery)
are properly completed and executed.
B. If any Letter of Transmittal or other document has been improperly
completed or executed (or any DTC Transmission is not in due and proper form or
omits required information) or the Restricted Securities 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 Restricted Securities exists, Exchange Agent shall
promptly report such information to the Holder. If such condition is not
promptly remedied by the Holder, Exchange Agent shall report such condition to
the Issuer and await its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and withdrawal of any
Restricted Securities tendered or delivered shall be determined by the Issuer,
in its sole discretion.
C. The Issuer reserves the absolute right (i) to reject any or all tenders
of any particular Restricted Securities determined by the Issuer not to be in
proper form or the acceptance or exchange of which may, in the opinion of
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
Restricted Securities, and the Issuer's interpretation of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and Notice
of Guaranteed Delivery and the instructions set forth therein) will be final and
binding.
6. Requirements of Tenders.
A. Tenders of Restricted Securities 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 Restricted Securities that the Issuer's President, Chief
Financial Officer, Chief Accounting Officer, or General Counsel, or any other
person designated by the Issuer's President shall approve as having been
properly tendered shall be considered to be properly tendered.
B. Exchange Agent shall (a) ensure that each Letter of Transmittal and the
related Restricted Securities 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; (b) 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 (c) in those instances where the
Restricted Securities are tendered by persons other than the registered holder
of such Restricted Securities, ensure that customary transfer requirements,
including any applicable transfer taxes, and the requirements imposed by the
transfer restrictions on the Restricted Securities (including any applicable
requirements for certifications, legal opinions or other information) are
fulfilled.
7. Exchange of the Restricted Securities.
A. Promptly after the Effective Time, the Issuer will deliver the form of
Exchange Securities to the Exchange Agent. Upon the Expiration Date, Exchange
Agent is hereby directed to deliver or cause to be delivered promptly Exchange
Securities to the Holders of Restricted Securities that properly tendered such
Restricted Securities in accordance with the terms set forth in the Exchange
Offer. The principal amount of the Exchange Securities to be delivered to a
Holder shall equal the principal amount of the Restricted Securities
surrendered.
B. The Exchange Securities issued in exchange for certificated Restricted
Securities 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 the Issuer from loss or
liability arising out of the non-receipt or non-delivery of such Exchange
Securities or the replacement thereof.
C. Notwithstanding any other provision of this Agreement, issuance of the
Exchange Securities for accepted Restricted Securities pursuant to the Exchange
Offer shall be made only after deposit with Exchange Agent of the Restricted
Securities, the Letter of Transmittal and any other required documents.
8. Securities Held in Trust. The Exchange Securities and any cash or other
property (the "Property") deposited with or received by Exchange Agent (in such
capacity) from the Issuer shall be held in a segregated account, solely for the
benefit of Issuer and Holders tendering Restricted Securities, 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. Exchange Agent
hereby waives any and all rights of lien, if any, against the Property, except
to the extent set forth in the Indenture with respect to the Exchange
Securities.
9. Reports to Issuer.
A. Exchange Agent shall notify, by electronic communication, the Issuer of
the principal amount of the Restricted Securities which have been duly tendered
since the previous report and the aggregate amount tendered since the Effective
Date on a daily basis until the Expiration Date. Such notice shall be delivered
in substantially the form set forth as Exhibit C.
B. Exchange Agent shall furnish to Issuer any additional reasonable
information available to the Exchange Agent with respect to the tender of
Restricted Securities as may be reasonably requested from time to time in
writing.
10. Record Keeping. Each Letter of Transmittal, Restricted Security 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
Restricted Securities 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 the Issuer. Exchange
Agent shall cancel certificated Restricted Securities. Exchange Agent shall
retain all Restricted Securities 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, Restricted Security, 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 Securities may be registered in a
name other than that of the record Holder of a surrendered Restricted Security,
if and only if (i) the Restricted Security surrendered shall be properly
endorsed (either by the registered Holder thereof or by a properly completed
separate power with such endorsement guaranteed by an Eligible Institution (as
defined in the Letter of Transmittal) and otherwise in proper form for transfer,
(ii) the person requesting such transfer of registration shall pay 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. If, pursuant to the Exchange Offer, less than all of
the principal amount of any Restricted Security submitted to Exchange Agent is
tendered, Exchange Agent shall, promptly after the Expiration Date, return, or
cause the registrar with respect to each such Restricted Security to return, a
new Restricted Security for the principal amount not being tendered to, or in
accordance with the instruction of, the Holder who has made a partial tender.
14. Withdrawals. A tendering Holder may withdraw tendered Restricted
Securities as set forth in the Prospectus, in which event Exchange Agent shall,
after proper notification of such withdrawal, return such Restricted Securities
to, or in accordance with the written instructions of, such Holder and such
Restricted Securities shall no longer be considered properly tendered. Any
withdrawn Restricted Securities may be tendered by again following the
procedures therefor described in the Prospectus 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 Restricted Securities tendered by a Holder of
Restricted Securities, Exchange Agent shall return or cause to be returned such
Restricted Securities to, or in accordance with the instructions of, such Holder
of Restricted Securities.
16. Cancellation of Exchanged Restricted Securities. Exchange Agent is
authorized and directed to cancel all Restricted Securities received by it upon
delivering the Exchange Securities to tendering holders of the Restricted
Securities as provided herein. Exchange Agent shall maintain a record as to
which Restricted Securities have been exchanged pursuant to Section 7 hereof.
17. Requests for Information.
A. Exchange Agent shall take such action as may from time to time be
reasonably requested by the Issuer or its counsel in writing (and such other
action as Exchange Agent may reasonably deem appropriate) to furnish copies of
the Prospectus, Letter of Transmittal and the Notice of Guarantee Delivery (as
defined in the Prospectus) or such other forms as may be approved from time to
time by 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 Exchange Agent
with copies of such documents at Exchange Agent's request. All other requests
for information relating to the Exchange Offer shall be directed to the Issuer,
Attention: Joseph R. Sicree, Chief Accounting Officer.
B. 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
Exchange Agent as exchange agent, which shall be controlled by this Agreement.
18. Tax Matters. Exchange Agent shall file with the Internal Revenue
Service and Holders Form 1099 reports regarding principal and interest payments
on Securities 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 such matter; provided that Exchange Agent shall cooperate
with Issuer in attempting to resolve such questions.
19. Reports. Within two (2) business days after the Expiration Date,
Exchange Agent shall furnish the Issuer a final report showing the disposition
of the Exchange Securities.
20. Fees and Expenses. Issuer will pay Exchange Agent its fees plus
expenses, including counsel fees and disbursements, as set forth in Exhibit D.
21. Concerning the Exchange Agent. 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 subsequently be agreed to in writing by
Exchange Agent and the Issuer;
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 Holder of Restricted Securities should or should
not tender its Restricted Securities and shall not solicit any Holder for the
purpose of causing such Holder to tender its Restricted Securities;
C. shall not be obligated to take any action hereunder which may, in
Exchange Agent's judgment, involve any expense or liability to Exchange Agent
unless it shall have been furnished with reasonable indemnity against such
expense or liability;
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 in good faith believed by Exchange
Agent to be genuine and to have been signed by the proper party or parties and
the Exchange Agent shall be under no duty to inquire into the validity of any
such document;
E. may rely on and shall be protected in acting upon the written
instructions of Issuer, its counsel, or its representatives with respect to any
matter relating to Exchange Agent's actions specifically covered by this
Agreement;
F. shall not be liable for any claim, loss, liability or expense, incurred
without Exchange Agent's negligence or willful misconduct, arising out of or in
connection with the administration of Exchange Agent's duties hereunder;
G. may execute any of its powers and perform any of its duties hereunder
directly or through agents and attorneys;
H. may consult with counsel, and the advice of such counsel or any opinion
of counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted in good faith by Exchange Agent hereunder
in accordance with the advice of such counsel or any opinion of counsel;
I. undertakes to perform only such duties as are expressly set forth
herein and no further duties or responsibilities shall be implied;
J. shall not be liable for any action taken or omitted by it in good faith
unless a court of competent jurisdiction determines that the Exchange Agent's
negligent or willful misconduct was the primary cause of any loss to the Issuer;
and
K. shall not in any event be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Exchange Agent has been advised of such loss or damage and
regardless of the form of action.
22. Indemnification. A. Issuer covenants and agrees to indemnify and hold
harmless Exchange Agent, its directors, officers, employees and agents (the
"Indemnified Persons") against any and all losses, damages, costs fines, suits,
actions, demands, penalties, costs and expenses, including out-of-pocket,
incidental expenses, legal fees and expenses, the allocated costs and expenses
of in-house counsel and legal staff and the costs and expenses of defending or
preparing to defend against any claim ("Losses") that may be imposed on,
incurred by, or asserted against, the Indemnified Persons for or in respect of
the Exchange Agent's (1) execution and delivery of this Agreement, (2)
compliance or attempted compliance with or reliance upon any instruction or
other direction upon which the Exchange Agent is authorized to rely pursuant to
the terms of this Agreement and (3) performance under this Agreement, except to
the extent that the Loss resulted from such Indemnified Person's negligence or
willful misconduct. Exchange Agent shall notify Issuer in writing of any written
asserted claim against Indemnified Person or of any other action commenced
against Exchange Agent or Indemnified Person, reasonably promptly after Exchange
Agent shall have received any such written assertion or shall have been served
with a summons in connection therewith. Issuer shall be entitled to participate
at its own expense in the defense of any such claim or other action and, if
Issuer so elects, Issuer may assume the defense of any pending or threatened
action against Exchange Agent in respect of which indemnification may be sought
hereunder; provided that Issuer shall not be entitled to assume the defense of
any such action if the named parties to such action include both the Issuer and
Indemnified Person and representation of both parties by the same legal counsel
would, in the written opinion of counsel for Exchange Agent, be inappropriate
due to actual or potential conflicting interests between them; and further
provided that in the event Issuer shall assume the defense of any such suit, and
such defense is reasonably satisfactory to Exchange Agent or any Indemnified
Person, Issuer shall not therewith be liable for the fees and expenses of any
counsel retained by Exchange Agent or any Indemnified Person.
C. The provisions of this Section 22 shall survive the termination of the
Agreement and the resignation or the dismissal of the Exchange Agent for any
reason.
B. Exchange Agent agrees that, without the prior written consent of Issuer
(which consent shall not be unreasonably withheld), 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.
24. Notices. 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.
250 Gibraltar Road
Horsham, PA 19044
Attention: Chief Accounting Officer
Fax: 215-938-8422
Telephone: 215-938-8045
Or to Exchange Agent at: J.P. Morgan Trust Company, National Association
Institutional Trust Services
Attention: Exchanges, Frank Ivins
2001 Bryan Street, 9th Floor
Dallas, Texas 75201
Facsimile: (214) 468-6494
Telephone: (800) 275-2048
Or to such address as either party shall provide by notice to the other party.
25. Change of Exchange Agent. Exchange Agent may resign from its duties
under this Agreement by giving to Issuer thirty days prior written notice. If
Exchange Agent resigns or becomes incapable of acting as Exchange Agent and the
Issuer fails to appoint a new exchange agent within a period of 30 days after it
has been notified in writing of such resignation or incapacity by Exchange
Agent, the 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. Except as otherwise provided by this Agreement, neither
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 otherwise eligible to act as Exchange Agent and, upon
45 days prior written notice to Exchange Agent, Issuer may transfer and assign
its rights and responsibilities hereunder to any successor by merger, any
purchaser of all of the common stock of Issuer, or any purchaser of all or
substantially all of Issuer's assets. This Agreement may be amended only in
writing signed by both parties. Any Exchange Securities which remain
undistributed after the Expiration Date shall be cancelled and delivered to the
Issuer upon demand, and any Restricted Securities which are tendered thereafter
shall be 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 their permitted successors and
assigns 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 holder of
Securities 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 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: ______________________________
Name:
Title:
J. P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION
By: ______________________________
Name:
Title:
EXHIBIT C
TOLL BROTHERS
Expires: 00/00/05
=================================================================================================================================
| PART PA INTEREST TOTAL |
| DATE # PARTICIPANT AMOUNT TENDERED PAID PAID PAID REMAINING |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | |
- ---------------------------------------------------------------------------------------------------------------------------------
EXHIBIT D
Schedule of Fees
Per letter of transmittal mailed: $100.00
Minimum fee: $7,500.00
Extraordinary services and special requests: by appraisal
Out of pocket expenses incurred will be billed for reimbursement at invoiced
cost
The minimum fee of $7,500.00 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.