EXHIBIT 99.3
Date: [ ], 1999
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street--21st Floor
New York, New York 10286
Ladies and Gentlemen:
Federal-Mogul Corporation (the "Company") proposes to make an offer (the
"Exchange Offer") to exchange an aggregate principal amount of up to
$400,000,000 7 3/8% Notes due 2006 (the "New 7 3/8% Notes") for a like principal
amount of the Company's issued and outstanding 7 3/8% Notes due 2006 (the "Old 7
3/8% Notes") and $600,000,000 7 1/2% Notes due 2009 (the "New 7 1/2% Notes" and
together with the New 7 3/8% Notes, the "New Notes") for a like principal amount
of the Company's issued and outstanding 7 1/2% Notes due 2009 (the "Old 7 1/2%
Notes" and together with the Old 7 3/8% Notes, the "Old Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus dated [ ], 1999 (the "Prospectus") proposed to be distributed to all
record holders of the Old Notes. Capitalized terms used but not defined herein
shall have the same meaning given to them in the Prospectus.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
[ ], 1999. The Letter of Transmittal accompanying the Prospectus (or in the
case of book-entry securities, the ATOP system) is to be used by the holders of
the Old Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Old Notes tendered in connection
therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on [ ],
1999 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 and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you before 9:00 A.M., New York City
time, on the business day following the previously scheduled Expiration Date.
You shall follow and act upon any further instructions in connection with the
Exchange Offer, any of which may be given to you by the Company or such other
persons as it may authorize, which are consistent with this Agreement.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer; Registration
Rights--Conditions to the Exchange Offer."
The Company will give oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable. In
carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer;
Registration Rights" or as specifically set forth herein; provided, however,
that in no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two (2) business days after the date of the
Prospectus, and any financial institution that is a participant in the Book-
Entry
Transfer Facility's systems may make book-entry delivery of Old Notes by causing
the Book-Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (or confirmations of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Notes to ascertain whether: (i) Letters of
Transmittal are duly executed and properly completed in accordance with
instructions set forth therein, (ii) the Old Notes have otherwise been properly
tendered or whether any stop transfer orders are in effect with respect to the
Old Notes, and (iii) any other documents submitted to you are duly executed and
properly completed. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed or any of the certificates
for Old Notes are not in proper form for transfer (as required by the
instructions stated in the Letter of Transmittal) or some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President or any Executive Vice President of
the Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by such an officer in writing, you are authorized to
waive any irregularities in connection with any tender of Old Notes pursuant to
the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "Exchange Offer;
Registration Rights--Procedures for Tendering," and Old Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which the
President or any Executive Vice President 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 Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two (2) or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes,
provided that customary transfer requirements, including transfer taxes, if
applicable, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as set forth in paragraph 10 hereof.
8. (a) Except as otherwise provided herein, delivery shall be deemed
made at the time the Old Notes (or a Book Entry Confirmation relating to such
Old Notes), the Letter(s) of Transmittal relating thereto and all other required
documents have been received by you.
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(b) A delivery by Notice of Guaranteed Delivery shall be deemed made
on the date such Notice of Guaranteed Delivery is received by you,
provided that all other conditions, including timely compliance with the
procedures for guaranteed delivery set forth in the Prospectus, are met.
(c) Defective deliveries shall be deemed validly made at the time the
irregularities have been cured to the satisfaction of, or waived by, the
Company.
9. You shall notify the Company as promptly as practicable after the
Expiration Date of the aggregate principal amount of Old Notes received by you
along with the specific information requested with respect to each category of
Old Notes pursuant to paragraph 21 hereof.
10. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, within two days of receipt of your notice
pursuant to paragraph 9 hereof, of all Old Notes properly tendered and you, on
behalf of the Company, will exchange such Old Notes for New Notes and cause
such Old Notes to be canceled. Delivery of New Notes will be made on behalf of
the Company by you at the rate of $1,000 principal amount of New Notes for each
$1,000 principal amount of the corresponding series of Old Notes tendered
promptly after notice (such notice if given orally, to be confirmed in writing)
of acceptance of said Old Notes by the Company, as set forth above; provided,
however, that in all cases, Old Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such Old
Notes (or confirmation of book-entry transfer into your account at the Book-
Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. You shall issue New Notes only in denominations
of $1,000 or any integral multiple thereof. Delivery of Old Notes will be made
on behalf of the Company by you for the principal amount of the Old Notes not
tendered, if tendered in part only, or not exchanged promptly after notice of
acceptance of Old Notes by the Company, as set forth above.
11. You are authorized to cause to be registered in the name of, and
deliver to the transferee in accordance with such instructions, New Notes if
Old Notes are surrendered to you for exchange with instructions to deliver New
Notes in a name other than that of the registered holder of the Old Notes;
provided, however, that it shall be a condition of such exchange that the Old
Notes so surrendered shall be properly endorsed or accompanied by appropriate
powers of attorney or other written instruments of transfer or exchange
satisfactory to the Company, with the signatures guaranteed by an Eligible
Institution, and that the person requesting such exchange shall pay any transfer
or other taxes required by reason of the issuance of such New Notes in the name
of a party other than the registered holder of the Old Notes surrendered, or
establish to you satisfaction that such tax has been paid or is not applicable.
12. If a holder of Old Notes shall advise you that Old Notes owned by the
holder have been lost or destroyed and not replaced, you are hereby authorized,
in the absence of notice to you that such Old Notes have been acquired by a bona
fide purchaser, to deliver to such holder the New Notes to which that holder
would be entitled, but only if you shall first have received (i) an affidavit of
loss of an Old Note which is in form and substance satisfactory to the Company
and the trustee under the indenture relating to the Old Note, in their sole
discretion, and (ii) such security or indemnity as may be required by the
Company or you to save and hold harmless to you, the Company, the trustee under
the indenture relating to the Old Notes and any other persons with respect to
the Old Notes alleged to have been lost or destroyed against liability from such
delivery in the absence of such Old Notes.
13. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
14. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (if orally, to be confirmed in writing) by the Company to you.
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15. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"Exchange Offer; Registration Rights--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 Old Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, with a letter or notice, in form satisfactory to the Company,
explaining why the Old Notes are being returned to the persons who deposited
them.
16. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes shall be forwarded by first-class mail.
17. You are authorized to cooperate with and furnish information to Sidley
& Austin or any of its representatives, or any other organization (and its
representatives) designated in writing to you from time to time by the Company,
in any manner reasonably requested by it in connection with the Exchange Offer
and the surrender of Old Notes thereunder.
18. 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.
19. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing by you and
the Company;
(b) will be regarded as making no representation and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old 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, value or genuineness of the
Exchange Offer, except where failure to recognize such invalidity or lack
of genuineness would constitute gross negligence;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter or other
document or security delivered to you and reasonably believed by you in
good faith to be genuine and to have been signed by the proper party or
parties, and you need not pass on the legal sufficiency of any signature or
verify any signature guarantee, although you are to ascertain whether each
signature or signature guarantee required to appear on the Letters of
Transmittal and any other required documents does so appear;
(e) shall not accept any defective, alternative, conditional or
contingent delivery, except as provided in the Prospectus, instructions to
the Letter of Transmittal or this Agreement;
(f) shall comply with the reasonable written instructions of the
Company if any dispute should arise between us or any other party with
respect hereto, or if you, in good faith, are in doubt as to what action
should be taken hereunder;
(g) may rely on and shall be protected in acting upon written or oral
instructions, with respect to any matter relating to your actions as
Exchange Agent specifically covered by this Agreement, or supplementing or
qualifying any such actions, from the President or any Executive Vice
President of the Company;
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(h) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(i) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Notes or take
any other action that may be deemed to be a solicitation of the exchange of
the Old Notes.
20. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) 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 will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: David M. Sherbin, Esq., Associate General Counsel and
Secretary.
21. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to David M. Sherbin, Esq., Associate General
Counsel and Secretary of the Company, and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the number of Old Notes which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received, items improperly received and items received but which have
not yet been verified to be in proper form. In addition, you will also inform,
and cooperate in making available to, the Company or any such other person or
persons upon oral request made from time to time prior to the Expiration Date of
such other information as it, he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and such
person as the Company may request access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that at all times
including 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. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered, the
aggregate principal amount of Old Notes accepted and deliver said list to the
Company.
22. 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, but in no event
less than three months. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
23. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to the Old Notes surrendered to you or
funds deposited with you for the payment of transfer taxes by reasons of
amounts, if any, borrowed by the Company, or any of its subsidiaries or
affiliates, pursuant to any loan or credit agreement with you or for
compensation owed to you hereunder.
24. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. Your
compensation shall be paid and reimbursed to you by the Company promptly upon
submission of one or more invoices therefore.
25. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. 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
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other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
26. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any claims, loss, liability,
cost or expense, including attorneys' fees and expenses, arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Notes reasonably believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Notes; provided, however, that the Company shall not be liable
for indemnification or otherwise for any claims, loss, liability, cost or
expense to the extent arising out of your gross negligence, willful misconduct,
bad faith or breach of this Agreement. In no case shall the Company be liable
under this indemnity with respect to any claim against you unless the Company
shall be notified by you, by letter or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or notice of commencement of action. 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, the Company 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, the Company 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,
and so long as you have not determined, in your reasonable judgment, that a
conflict of interest exists between you and the Company. You shall not enter
into a settlement or other compromise with respect to any fully indemnified
loss, liability, cost or expense without the prior written consent of the
Company. If you shall obtain a repayment of any loss, liability, cost or expense
paid by the Company pursuant hereto, you shall promptly pay to the Company the
amount of such repayment, together with the amount of any interest received by
you on account of such repayment.
27. You shall comply with all requirements under the tax laws of the
United States, including those relating to missing Tax Identification Numbers
and obtaining and retaining substitute forms W-9, and shall file and mail any
appropriate reports which you are required to file pursuant to the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
with the Internal Revenue Service. The Company understands that you are required
to deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. You shall remit such
funds to the Internal Revenue Service in accordance with applicable regulations
and remit to each tendering holder of Old Notes any requisite federal income tax
information return or other similar document.
28. You shall deliver or cause to be delivered, in a timely manner, to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Notes, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Notes and, where
appropriate, advise the holders of any such taxes for which they may be liable
and obtain payment from such holders prior to delivery of any New Notes;
provided, however, that you shall take all steps reasonably necessary to secure
any rebate or refund allowable to connection with such transfer taxes for the
account of the Company and that you shall reimburse the Company for amounts
refunded to you in respect of your payment of any such transfer taxes, at such
time as such refund is received by you.
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29. 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. This Agreement 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.
30. This Agreement may be executed in two (2) 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.
31. 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.
32. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
33. Unless otherwise provided herein, all notices, requests and
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Facsimile: (248) 354-7999
Attention: General Counsel
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
34. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety (90) days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 24, 26 and 28 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for securities, funds or property then held by you
as Exchange Agent under this Agreement.
35. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
FEDERAL-MOGUL CORPORATION
By:
--------------------------------
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
FEES
Basic Exchange Agent Fee............................................. ____
Extension of Exchange Offer Fee...................................... ____
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