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Exhibit 10.7(a)
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
________________, 1998
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
Sparkling Spring Water Group Limited, a corporation organized under the
laws of the Province of Nova Scotia, Canada (the "Company"), is offering to
exchange (the "Exchange Offer") $100,000,000 aggregate principal amount of its
11 1/2% Senior Subordinated Notes due 2007 (the "New Notes") for an equal
principal amount of its 11 1/2% Senior Subordinated Notes due 2007 (the "Old
Notes" and, together with the New Notes, the "Notes"), pursuant to a prospectus
(the "Prospectus") included in the Company's Registration Statement on Form F-4
(File No. 333-43061) as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC") and attached hereto as
Exhibit A. The term "Expiration Date" shall mean 5:00 p.m., New York City time,
on _______________, 1998, unless the Exchange Offer is extended as provided in
the Prospectus, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended. Upon execution of this
Agreement, Bankers Trust Company will act as the Exchange Agent for the
Exchange Offer (the "Exchange Agent"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter of
clients (collectively, the "Tender Documents") to be used by Holders of Old
Notes in order to receive New Notes pursuant to the Exchange Offer are attached
hereto as Exhibit B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you are
to act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the Company
that the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof the date thereof and to any persons who become Holders prior to
the Expiration Date and to any persons as may from time to time be requested by
the Company. All mailings pursuant to this Section 1 shall be by first class
mail, postage prepaid, unless otherwise specified by the Company. You shall also
accept and comply with telephone requests for information relating to the
Exchange Offer provided that such information shall relate only to the
procedures for tendering Old Notes in (or withdrawing tenders of Old Notes from)
the Exchange Offer provided that such information shall relate only to the
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procedures for tendering Old Notes in (or withdrawing tenders of Old Notes from)
the Exchange Offer. All other requests for information relating to the Exchange
Offer shall be directed to the Company, Attention: Stephen L. Larson.
2. You are to examine Letters of Transmittal and the Old Notes and
other documents delivered or mailed to you, by or for the Holders, prior to the
Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii) the Old Notes are in proper form for transfer and (iii) all other
documents submitted to you are in proper form. In each case where a Letter of
Transmittal or other document has been improperly executed or completed or, for
any other reason, is not in proper form, or some other irregularity exists, you
are authorized to endeavor to take such action as you consider appropriate to
notify the tendering Holder of such irregularity and as to the appropriate means
of resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Old Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Old Notes and other documents in
connection with the Exchange Offer, shall be made by the officers of, or counsel
for, the Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall be
final and binding.
3. At the written request of the Company or its counsel, Robinson &
Cole LLP, you shall notify tendering Holders of Old Notes in the event of any
such termination, you will return all tendered Old Notes to the persons entitled
thereto, at the request and expense of the Company or its counsel, Robinson &
Cole LLP.
4. Tender of the Old Notes may be made only as set forth in the Letter
of Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for one year. New Notes
are to be issued in exchange for Old Notes pursuant to the Exchange Offer only
(i) against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in the
Instructions of the Letter of Transmittal, within __________ New York Stock
Exchange trading days after the Expiration Date of the Exchange Offer, together
with executed Letters of Transmittal and other documents required by the
Exchange Offer or (ii) in the event that the Holder is a participant in the
Depository Trust Company ("DTC") system, by the utilization of DTC's Automated
Tender Offer Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the date hereof in accordance with SEC Regulation 240.17
Ad. Any financial institution that is a participant in the Book Entry Transfer
Facility system may, until the Expiration Date, make book-entry delivery of the
Notes by causing the Book Entry Facility to transfer such Notes into your
account in accordance with the procedure for such transfer established by the
Book Entry Transfer Facility. In every case, however, a Letter of Transmittal
(or a manually executed facsimile thereof), or an Agent's Message, properly
completed and duly executed, with any required signature guarantees and any
other required documents must be transmitted to and received by you prior to the
Expiration Date or the guaranteed delivery procedures described in the Exchange
Offer must be complied with.
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5. Upon oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to Stephen L. Larson or
such other persons as the Company may reasonably request, the aggregate number
and principal amount of Old Notes tendered to you and the number and principal
amount of Old Notes property tendered that day. In addition, you will also
inform the aforementioned persons, upon oral request made from time to time
(with written confirmation of such request thereafter) prior to the Expiration
Date, of such information as they or any of them may reasonable request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Old Notes. You will hold all items which are deposited for tender with
you after 5:00 p.m. New York City time, on the Expiration Date pending further
instructions from an officer of the Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by the Company, a bond
of indemnity in an amount and evidenced by such certificate or certificates of a
surety, as may be satisfactory to you and the Company, and (ii) to execute and
deliver an agreement to indemnify the Company and you in such form as is
acceptable to you and the Company. The obligees to be named in each such
indemnity bond shall include the Company and you. You shall report to the
Company the names of all Holders who claim that their Old Notes have been lost
or destroyed and the principal amount of such Old Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such Holders may be entitled to receive and you shall arrange for
cancellation of the Old Notes submitted to you or returned by DTC in connection
with ATOP. Such Old Notes shall be forwarded to Stephen L. Larson for
cancellation and retirement as you are instructed by the Company (or a
representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorney's fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Company
in connection with the Exchange Offer;
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(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you shall have been furnished with an indemnity reasonably satisfactory
to you;
(d) may rely on, and shall be fully protected and indemnified
as provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to you acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you in good faith and in accordance with
such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom
of the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred in
connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement, provided, however, such Indemnified
Party shall use its best effort to notify the Company by letter, or by cable,
telex or telecopier confirmed by letter, of the written assertion of a claim
against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event with 10 days of the date such
Indemnified Party shall have received any such written assertion of a claim or
shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, however, that
failure to so notify the Company shall not relieve the Company of any liability
which it may otherwise have hereunder except such liability that is a direct
result of such Indemnified Party's failure to so notify the Company. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or legal action and if the Company so elects or if the Indemnified Party
in such notice to the Company so directs, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event the Company assumes
such defense, the Company shall not be liable for any fees and expense
thereafter incurred by such Indemnified Party, incurred as a result of the need
to have separate representation because of a conflict of interest between such
Indemnified Party and the Company. You shall not enter into a settlement or
other compromise with respect to any indemnified loss, liability or expense
without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
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binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State of
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without
an express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
17. 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.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Section 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Notes or New Notes, funds or property then held
by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to Company:
Sparkling Spring Water Group Limited
One Landmark Square, 11th Floor
Stamford, Ct 06901
Telecopier No.: (203) 325-1057
Attn: Stephen L. Larson
and a copy to:
Robinson & Cole LLP
Financial Centre
695 East Main Street
Stamford, CT 06904
Telecopier No.: (203) 462-7599
Attn: Richard A. Krantz, Esq.
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If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, NY 10006
Attn.: Corporate Market Services
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Telephone: 212-250-4730
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Telecopier: 212-250-6392/6961
and a copy to:
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
20. This Exchange Agent Agreement and all of the obligations hereunder
shall be assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
By:
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Name: Stephen L. Larson
Title: Vice Chairman of the Board
Agreed to this day of , 1998
BANKERS TRUST COMPANY,
as Exchange Agent
By:
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Name:
Title:
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