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EXHIBIT 99.3
__________ ___, 1998
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: [Corporate Trust Department]
Ladies and Gentlemen:
The J.H. Heafner Company, Inc., a North Carolina corporation
(the "Company"), proposes to make an offer (the "Exchange Offer") to exchange
with the holders thereof (i) its 10% Senior Notes due 2008 (the "Exchange
Notes") for a like principal amount of its outstanding 10% Senior Notes due 2008
(the "Initial Notes", which are part of the same series as the Exchange Notes),
of which $100,000,000 aggregate principal amount is outstanding, which Exchange
Notes have been registered under the Securities Act of 1933, as amended.
The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a Prospectus (the "Prospectus") dated __________
__, 1998, distributed to record holders of the Initial Notes on or about such
date. The Initial Notes and the Exchange Notes are collectively referred to
herein as the "Notes." Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Prospectus.
The Company hereby appoints The Chase Manhattan Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Company
on or about September __, 1998. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Initial Notes to accept the
Exchange Offer and contains certain instructions with respect to (i) the
delivery of certificates for Initial Notes tendered in connection therewith,
(ii) the book entry transfer of Notes to the Exchange Agent's account at The
Depository Trust Company (the "Book-Entry Transfer Facility"), and (iii) other
matters relating to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on __________ __, 1998 or on such later date or time to which the Company
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time by giving oral (to be confirmed
in writing) or written notice to you no later than 1:00 p.m., New York City
time, on the business day following the previously scheduled Expiration Date.
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The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Initial Notes not
theretofore accepted for exchange, upon the occurrence of any failure of the
conditions of the Exchange Offer specified in the Prospectus under the caption
"The Exchange Offer -- Certain Conditions to the Exchange Offer." The Company
will give oral (to be confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Initial Notes 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 set forth herein and in the Letter of Transmittal.
2. You will establish an account with respect to the Initial
Notes at the Book-Entry Transfer Facility for purposes of the Exchange Offer
within two business days after the date of this Agreement, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Initial Notes by causing the Book-Entry
Transfer Facility to transfer such Initial Notes into your account in accordance
with the Book-Entry Transfer Facility's procedure for such transfer. You are not
required to collect Letters of Transmittal from persons tendering Notes through
the Book-Entry Transfer Facility.
3. You are to examine each of the Letters of Transmittal,
certificates for Initial Notes (or 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 Initial
Notes to ascertain whether (i) the Letters of Transmittal and any such other
documents are executed and properly completed in accordance with instructions
set forth therein and (ii) the Initial Notes have otherwise been properly
tendered. In each case where the Letter of Transmittal or any other document has
been improperly completed or executed or any of the certificates for Initial
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 J. Michael Gaither or any other person
designated in writing by the Company (a "Designated Officer") (such approval, if
given orally, to be confirmed in writing) or any other party designated by any
such Designated Officer in writing, you are authorized to waive any
irregularities in connection with any tender of Initial Notes pursuant to the
Exchange Offer.
5. Tenders of Initial Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Procedures for Tendering Initial Notes," and Initial Notes
shall be considered properly tendered to you only when tendered in accordance
with the procedures set forth therein.
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Notwithstanding the provisions of this paragraph 5, Initial
Notes that the Designated Officer of the Company 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 Company with respect to any Initial
Notes delivered subsequent to the Expiration Date and accept the Company's
instructions (if given orally, to be confirmed in writing) with respect to the
disposition of such Initial Notes.
7. You shall accept tenders:
(a) in cases where the Initial 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 such person's authority to so act
is submitted; and
(c) from persons other than the registered holder of Initial
Notes provided that customary transfer requirements, including payment
of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Initial Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Initial Notes to the Transfer Agent for split-up and return any untendered
Initial 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 the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of the Company's acceptance, promptly after the Expiration
Date, of all Initial Notes properly tendered and you, on behalf of the Company,
will exchange such Initial Notes for Exchange Notes and will deliver such
Initial Notes as directed by the Company. Delivery of Exchange Notes will be
made on behalf of the Company by you at the rate of $1,000 principal amount of
Exchange Notes for each $1,000 principal amount of Initial Notes tendered
promptly after notice (such notices, if given orally, to be confirmed in
writing) of acceptance of said Initial Notes by the Company; provided, however,
that in all cases Initial Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Initial
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 an
Agent's Message in lieu thereof) and any other required documents. You shall
issue Exchange Notes only in denominations of $1,000 or in any integral multiple
in excess thereof. Initial Notes may be tendered in whole or in part in integral
multiples of $1,000 in aggregate principal amount.
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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, Initial Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company shall not be required to exchange any Initial
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Initial Notes
tendered shall be given (such notice, if given orally, shall be confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Initial Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer - Certain Conditions to 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 Initial Notes (or effect the appropriate book-entry transfer of the
unaccepted Initial Notes), together with any related required documents and the
Letter of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Initial Notes, unaccepted
Initial Notes or Exchange Notes shall be forwarded at the Company's expense by
(a) first-class mail, return receipt requested, under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
nonreceipt or nondelivery of such certificates or (b) registered mail insured
separately for the replacement value of each 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 any of the certificates or the Initial Notes represented
thereby deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity,
sufficiency, value or genuineness of the Exchange Offer including
without limitation the Prospectus, the Letter of Transmittal or the
instructions related thereto;
(b) shall not be obligated to take any action hereunder that
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity
satisfactory to you;
(c) may conclusively rely on and shall be fully protected in
acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other
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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 conclusively act upon any tender, statement, request,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein that you
shall in good faith reasonably believe to be genuine or to have been
signed or represented by a proper person or persons;
(e) may conclusively rely on and shall be fully protected in
acting upon written or oral instructions from any Designated Officer of
the Company with respect to the Exchange Offer;
(f) shall not advise any person tendering Initial 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 Initial Notes; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities, and the advice
or written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by you hereunder in good faith and in accordance with such
advice or written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by any Designated Officer of the Company (and such other action as you
may reasonably deem appropriate) to furnish copies of the Prospectus, the Letter
of Transmittal and the Notice of Guaranteed Delivery, or such other forms as may
be approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone 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
Company shall furnish you with copies of such documents at your request.
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to J. Michael Gaither, Senior Vice
President/Strategic Planning, General Counsel and Secretary, and such other
person or persons as the Company may request, daily (and more frequently during
the week immediately preceding the Expiration Date, if reasonably requested) up
to and including the Expiration Date, as to the principal amount of the Initial
Notes that 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 Company or any such other
person or persons as the Company reasonably requests from time to time prior to
the Expiration Date of such other information as they or such person or persons
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person or persons as the Company may
reasonably request of access to those persons on
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your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer.
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 at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you
shall be entitled to compensation of Six Thousand Dollars ($6,000) and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
the Exchange Offer.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal 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
rights, duties, liabilities and indemnification of you as Exchange Agent, which
shall be controlled by this Agreement.
20. (a) The Company agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any liability, cost, tax
(other than any income tax), claim or expense, including reasonable attorneys'
fees and disbursements, arising out of or in connection with any action taken or
omitted to be taken by the Exchange Agent in connection with its acceptance or
performance of it duties under the Agreement and the documents related thereto,
including without limitation, 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 Initial 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 Initial Notes; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
breach of this Agreement, willful misconduct or bad faith. You shall notify the
Company in writing of the assertion of any claim against you; provided however,
that your failure so to notify shall not excuse the Company from its obligations
hereunder except to the extent such failure to notify shall prejudice or cause
damage to the Company. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action, and, if the Company so
elects, shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, it
shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company 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 Company, provided
that the Company shall not be entitled to assume the defense
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of any action if representation of the parties by the same legal counsel would,
in the reasonable opinion of counsel for the Exchange Agent, be inappropriate
due to actual or potential conflicting interests between the parties. This
indemnification shall survive the release, discharge, termination and/or
satisfaction of this Agreement.
(b) You agree that, without the prior written consent of the
Company (which consent shall not be unreasonably withheld), you will
not settle, compromise or consent to the entry of judgment in any
pending or threatened claim, action, or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not you or the Company or any
of its controlling persons is an actual or potential party to such
claim, action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Company and
controlling persons from all liability arising out of such claim,
action or proceeding.
21. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, 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. All communications, including notices, required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if (i) delivered personally with receipt acknowledged, (ii) sent
by registered or certified mail, return receipt requested, (iii) transmitted by
facsimile (which shall be confirmed by telephone and by a writing sent by
registered or certified mail on the business day that such facsimile is sent),
or (iv) sent by recognized overnight courier for next business day delivery,
addressed to the parties at the addresses or facsimile numbers as any party
shall hereafter specify by communication to the other parties in the manner
provided herein:
If to the Company:
The J.H. Heafner Company, Inc.
Water Ridge Parkway, Suite 500
Charlotte, North Carolina 28217
Fax No.: (704) 423-8987
Attn: J. Michael Gaither
Senior Vice President/Strategic Planning, General Counsel
and Secretary
with a copy to:
Howard, Smith & Levin LLP
1330 Avenue of the Americas
New York, NY 10019
Fax No.: (212) 841-1010
Attention: Kelly Vance, Esq.
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If to the Exchange Agent:
The Chase Manhattan Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001-2697
Fax No.: (212) 638-7375 or (212) 344-9367
Attention: Carlos Esteves
23. 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 shall constitute one and the same agreement.
24. 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.
25. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, paragraph 18 and 20 and any outstanding obligation of the
Exchange Agent shall survive the termination of this Agreement.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
THE J.H. HEAFNER COMPANY, INC.
By: ________________________________
J. Michael Gaither
Senior Vice President/Strategic
Planning, General Counsel and
Secretary
Accepted as of the date first above written:
THE CHASE MANHATTAN BANK, as Exchange Agent
By: ___________________________
Name:
Title: