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EXHIBIT 99.3
HOME INTERIORS & GIFTS, INC.
4550 Spring Valley Road
Dallas, Texas 75244-3705
October ___, 1998
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Ladies and Gentlemen:
Home Interiors & Gifts, Inc., a Texas corporation (the "Company"), is
making an offer to exchange $1,000 principal amount of its 10 1/8% Senior
Subordinated Notes due 2008 (the "Exchange Notes"), upon the terms and subject
to the conditions set forth in the Prospectus, dated October __, 1998 (the
"Prospectus"), and in the related Letter of Transmittal (the "LT"), for each
$1,000 principal amount of its outstanding 10 1/8% Senior Subordinated Notes
due 2008 (the "Old Notes") issued pursuant to an Indenture, dated as of June 4,
1998 (the "Indenture"), among the Company, the Guarantors (as defined therein)
and United States Trust Company of New York, as trustee (the "Trustee"). The
offer to exchange Exchange Notes for Old Notes pursuant to the Prospectus and
the LT are referred to collectively herein as the "Exchange Offer." Attached
hereto and incorporated herein by reference as Exhibits A through D,
respectively, are the following:
A. The Prospectus;
B. A form of the LT;
C. A form of the Notice of Guaranteed Delivery; and
D. The Exchange Agent's Fee and Expense Schedule.
The Exchange Offer will commence on October___, 1998 (the
"Commencement Date"), and will expire at 5:00 p.m., New York City time, on
November ___, 1998, unless extended by the Company as provided in the Exchange
Offer (the last date to which the Offer is extended and on which the Exchange
Offer expires is herein referred to as the "Expiration Date"). The Company
will notify you in writing on the day of any extension of the Exchange Offer.
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The Company hereby appoints you, and you hereby agree, to act as the
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
In such capacity, you will, on behalf of the Company, receive and deliver
Exchange Notes for Old Notes tendered pursuant to the terms of the Exchange
Offer. The parties hereto acknowledge that the Old Notes and the Exchange
Notes are held in book-entry form, and that all references to the tendering,
delivery or exchange of Old Notes or Exchange Notes shall be deemed to include
book entry procedures. In carrying out your duties as the Exchange Agent in
connection with the Exchange Offer, you and the Company agree as follows:
1. You will make a request to establish an account with respect
to the Old Notes at The Depository Trust Company ("DTC") within two business
days after the date of this Agreement. You agree that any financial
institution that is a participant in DTC's systems may make book-entry delivery
of Old Notes in accordance with DTC's Automated Tender Offer Program ("ATOP").
2. On the Commencement Date you will send by first class mail to
each holder of Old Notes, at the addresses shown on the register maintained by
you as Registrar under the Indenture, for use by such holder in forwarding and
tendering the Old Notes to you as Exchange Agent, one copy of each of the
Prospectus, the LT and the Notice of Guaranteed Delivery, along with a
self-addressed envelope prepared by you as Exchange Agent. Upon request of any
holder of Old Notes, you are hereby authorized to issue additional documents to
such holder of Old Notes.
3. You will examine the LTs, the certificates evidencing Old
Notes, the Notices of Guaranteed Delivery and the other documents mailed or
otherwise delivered to you in connection with tenders of Old Notes to ascertain
whether each such LT or Notice of Guaranteed Delivery has been properly
completed and duly executed and whether the certificates evidencing Old Notes
accompanying such LT or received pursuant to a Notice of Guaranteed Delivery
are in proper form for transfer, in each case in accordance with the
instructions set forth in the Exchange Offer. Final determination of all
questions as to the validity, form, eligibility and acceptance for exchange of
any tender of Old Notes shall be made by the Company in its sole discretion and
such determination shall be final and binding. The Company has reserved in the
Exchange Offer the absolute right to reject any or all tenders of Old Notes
determined by it not to be timely or in proper form or the acceptance of or
exchange for which may, in the opinion of the Company's counsel, be unlawful
and to waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of the Old Notes, and the Company's interpretation
of the terms and conditions of the Exchange Offer will be final. The Company
promptly shall notify you, in writing, of any such rejection or waiver.
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4. Subject to the provisions of Paragraph 3 concerning the
Company's ability to waive defects in the tender, Old Notes must be tendered
only in accordance with the terms and conditions set forth in the Exchange
Offer.
(a) Exchange of Exchange Notes for Old Notes tendered and
accepted for exchange pursuant to the Exchange Offer shall be made
only if:
(i) you receive prior to the Expiration Date (A)
certificates for such Old Notes and (B) a properly completed
and duly executed LT (or facsimile thereof) relating thereto;
or
(ii) you receive on or prior to the Expiration
Date electronic instructions tendering the Old Notes through
the ATOP system that contain the character by which the
participant at DTC acknowledges its receipt of and agrees to
be bound by the LT; or
(iii) you receive (A) a Notice of Guaranteed
Delivery relating to such Old Notes from an Eligible
Institution (as defined in the Exchange Offer) prior to the
Expiration Date and (B) certificates for such Old Notes and a
properly completed and duly executed LT (or facsimile thereof)
relating thereto at or prior to 5:00 p.m., New York City time,
on or before the third New York Stock Exchange (the "NYSE")
trading day after the date of execution of such Notice of
Guaranteed Delivery;
(b) Exchange of Exchange Notes for Old Notes shall be
made only if a final determination of the adequacy of the items
received, as provided in Paragraph 3 hereof, has been made by the
Company and you receive written notice from the Company that the
conditions of the Exchange Offer have been satisfied or waived.
(c) You are authorized to take such actions as may be
necessary and appropriate to correct any irregularities or
deficiencies associated with any tender not in proper order and to
follow the instructions of the Company with respect to the waiver of
any irregularities or deficiencies associated with any tender.
5. A tendering holder of Old Notes may withdraw Old Notes
tendered prior to the Expiration Date as set forth in the Exchange Offer, in
which event you shall, as promptly as possible after notification of such
withdrawal, return such Old Notes to, or in accordance with the instructions
of, such holder of Old Notes, and such Old Notes shall thereafter be deemed not
to have been validly tendered. All questions as to the form and validity
(excluding time of receipt) of notices of withdrawal shall be determined by the
Company, in its sole discretion, such determination to be final and binding.
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6. On each day there is activity while the Exchange Offer remains
open, and once each day on the Expiration Date and the four business days
immediately preceding the Expiration Date, you shall advise in writing via
facsimile to Leonard A. Robertson of the Company, 4550 Spring Valley Road,
Dallas, Texas 75244-3705 (telephone: (972) 386-1000, facsimile: (972)
490-7582) and to Kyle C. Krpata of Weil, Gotshal & Manges LLP, at 100 Crescent
Court, Suite 1300, Dallas, Texas 75201-6950 (telephone: (214) 746-7819;
facsimile: (214) 746-7777) as to the aggregate principal amount of Old Notes
which have been validly tendered since the last advice, stating separately (i)
the aggregate principal amount of Old Notes tendered and represented by
certificates physically held by you since the last advice, (ii) the aggregate
principal amount of Old Notes tendered by Notices of Guaranteed Delivery since
the last advice, (iii) the aggregate principal amount of Old Notes tendered
since the last advice about which you have questions concerning the validity of
their tender, (iv) the aggregate principal amount of Old Notes delivered which
have been tendered previously by Notices of Guaranteed Delivery, (v) the
aggregate principal amount of Old Notes that have been withdrawn since the last
advice and which had been previously tendered, and (vi) the cumulative
aggregate principal amount of Old Notes tendered (and not withdrawn or revoked)
through the time of such advice. You shall also provide the aforementioned
persons (or any other persons identified to you by such aforementioned
persons), with such other information as any of them may reasonably request.
7. LTs, Notices of Guaranteed Delivery and withdrawn tenders of
Old Notes and facsimile transmissions submitted in lieu thereof pursuant to the
Exchange Offer shall be recorded by you as to the date and time of receipt
thereof and preserved by you as permanent records until you are otherwise
instructed in writing by the Company. You shall match submitted Notices of
Guaranteed Delivery with Old Notes tendered pursuant thereto, although you
shall have no duty to enforce any such Notices of Guaranteed Delivery.
8. You shall follow and act upon any written amendments,
modifications or supplements to these instructions to which you agree in
writing, and 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 in writing.
9. The Company shall notify you in writing of the tendered Old
Notes, if any, which have been accepted for exchange, and such written
notification shall be irrevocable. Upon completion of the issuance of Exchange
Notes, you will promptly provide to the Company (i) a list, certified by an
authorized officer, of the Old Notes that have been canceled in accordance
herewith, (ii) a list, certified by an authorized officer, of the Exchange
Notes that have been issued and (iii) a list, certified by an authorized
officer, of the Old Notes not tendered for exchange or tendered and withdrawn,
each such list to include the name and address of the former or current holder,
as applicable, and the principal amount of each Old Note or Exchange Note, as
applicable.
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10. If, pursuant to the provisions of the instructions to the LTs,
less than the entire principal amount evidenced by any certificate delivered to
you is to be tendered, you shall, promptly after the Expiration Date, and after
receipt of the acceptance notice provided in Paragraph 9 with respect to the
tendered portion, return or cause to be returned a new certificate evidencing
the untendered remainder of the principal amount of the Old Note that was
evidenced by such certificate to, or in accordance with the instructions of,
the tendering holder of such Old Note.
11. If, pursuant to the terms of the Exchange Offer, the Company
does not accept for exchange all or any part of the tendered Old Notes, or Old
Notes are tendered but withdrawn in the manner provided in the Exchange Offer,
you shall promptly return to, or in accordance with the instructions of, each
tendering holder of such Old Notes the certificates evidencing the principal
amount of Old Notes not exchanged or, to the extent required, submit to the
Company for reissuance to, or in accordance with the instructions of, each
tendering holder of Old Notes certificates evidencing the principal amount of
Old Notes not tendered or exchanged, which certificates shall be returned to
you for disposition, together with a letter of notice provided by the Company,
explaining why the tendered Old Notes are being returned.
12. Certificates evidencing the Exchange Notes as well as
certificates evidencing principal amounts of Old Notes not exchanged shall be
forwarded in accordance with Paragraphs 9, 10 or 11 hereof, as the case may be,
by (a) first-class mail under an existing insurance policy protecting you and
the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of such certificates.
13. Upon request of any person, you shall furnish to such person
copies of the Prospectus, and supplements thereto, the LTs, Notices of
Guaranteed Delivery and the other materials referred to in the Prospectus as
being available to holders of Old Notes. The Company will supply you promptly
with copies of such documents upon your request.
14. As Exchange Agent you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as subsequently may be requested by
the Company in writing and agreed to in writing by you, and no implied
duties or obligations shall be read into this Agreement against you;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or
genuineness of any certificates evidencing Old Notes deposited with
you pursuant to the Exchange Offer and will not
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be required to and will make no representations as to the validity,
sufficiency, value or genuineness of the Exchange Offer or the
Exchange Notes;
(c) shall not be required to initiate any legal action
hereunder that might in your judgment involve any expense or liability
to you except upon written instructions of the Company and then only
if you have been furnished by the Company with such indemnity as shall
be satisfactory to you in your sole discretion;
(d) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram, facsimile
transmission or other document delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper
party or parties;
(e) may rely on and shall be protected in acting upon
written or oral instructions from Donald J. Carter, Jr., Leonard A.
Robertson or Bettina S. Simon, who are each officers of the Company,
or such other person or persons as may be designated by the Company in
writing, with respect to any matter relating to your actions as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such actions;
(f) may consult with counsel satisfactory to you
(including counsel for the Company) 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 by you hereunder in
good faith and in accordance with such advice or opinion of such
counsel;
(g) shall not at any time advise or be called upon to
advise any person as to the wisdom of making any tender pursuant to
the Exchange Offer, the market value or decline or appreciation in
market value of the Old Notes or the Exchange Notes, or any other
financial or legal aspect of the Exchange Offer or any transaction
related thereto; and
(h) shall be entitled, in the event that conflicting
claims are made, or threatened, against you with respect to the
Exchange Offer, to institute an interpleader action in any court of
competent jurisdiction requesting such court to resolve such
conflicting claims.
15. You hereby agree that all securities, money, assets and
property (collectively, the "Property") deposited with or received by you as
Exchange Agent constitute a special, segregated account, held solely for the
benefit of the Company and holders of Old Notes tendering Old Notes, as their
interests may appear, and the Property shall not be commingled with the
securities, money, assets or property of you or any other person or entity.
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16. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes.
17. In performing and carrying out your duties and
responsibilities under this Agreement, you may employ and utilize such agents
and employees as you in your sole discretion deem necessary, advisable or
desirable to carry out the purpose of this Agreement. For services rendered as
Exchange Agent hereunder, you shall be entitled to the fees specified in
Exhibit D hereto. The Company shall also reimburse you for reasonable
out-of-pocket expenses (including, but not limited to, reasonable fees and
expenses of your legal counsel) in connection with your services. The failure
of the Exchange Offer in its entirety or in part or as to any particular holder
of Old Notes shall in no event affect your entitlement to your fees and
expenses.
18. The Company covenants and agrees to indemnify and to hold you
harmless against any costs, expenses (including reasonable fees and expenses of
your legal counsel), losses or damages which may be paid, incurred or suffered
by you or to which you may become subject, arising from or out of, directly or
indirectly, any claim or liability resulting from your actions or inactions as
Exchange Agent pursuant hereto; provided that such covenant and agreement does
not extend to, and you shall not be indemnified and held harmless with respect
to, such costs, expenses, losses and damages incurred or suffered by you as a
result of, or arising out of, your gross negligence, bad faith, or willful
failure to perform your obligations hereunder.
19. All reports, notices and other communications required or
permitted hereunder (other than the telephonic advice required by Paragraph 6)
shall be in writing (unless otherwise provided herein) and shall be deemed
given when delivered by hand, facsimile transmission or first-class mail,
postage prepaid, as follows:
To the Exchange Agent:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Department
Telephone No. (212) 852-1676
Facsimile No. (212) 852-1626
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To the Company:
Home Interiors & Gifts, Inc.
4550 Spring Valley Road
Dallas, Texas 75244-3705
Attention: Bettina S. Simon
Telephone No. (972) 386-1000
Facsimile No. (972) 386-1106
With copy to:
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
Attention: Glenn D. West
Telephone No. (214) 746-7780
Facsimile No. (214) 746-7777
20. 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, and shall inure to the benefit of, and the obligation
created hereby shall be binding upon, the successors and assigns of each of the
parties hereto; provided, however, that no assignment by the Company shall
affect the Exchange Agent's rights under Paragraphs 14, 18 and 19 hereof. This
Agreement may not be assigned by you without prior written consent of the
Company.
21. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original but which together shall
constitute one and the same agreement. This Agreement may only be amended,
modified or supplemented in writing signed by all parties hereto.
22. Upon the first to occur of (a) the completion of your duties
hereunder or (b) 90 days following the Expiration Date, your designation as
Exchange Agent and your obligations hereunder will terminate at the close of
business on said date. The provisions of Paragraphs 18 and 19 shall survive
the termination of this Agreement and shall continue in full force and effect.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
HOME INTERIORS & GIFTS, INC.
By:
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Name:
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Title:
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Accepted as of the date first above written.
UNITED STATES TRUST COMPANY OF NEW YORK,
as Exchange Agent
By:
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Name:
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Title:
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