Exhibit 99.3
UNITED STATES CAN COMPANY
700 East Butterfield Road, Suite 250
Lombard, Illinois 60148
____________, 2003
Wells Fargo Bank Minnesota, N.A.
Corporate Trust
Sixth and Marquette
MAC N9303-120
Minneapolis, MN 55479
Ladies and Gentlemen:
United States Can Company, a Delaware corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $125,000,000
aggregate principal amount of its 10-7/8% Series B Senior Secured Notes due 2010
(the "Exchange Notes"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), for a like principal amount of its
outstanding 10-7/8% Senior Secured Notes due 2010 (the "Notes"), of which
$125,000,000 aggregate principal amount is outstanding. The terms and conditions
of the Exchange Offer as currently contemplated are set forth in a prospectus,
dated __________, 2003 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A and is a part of this Agreement, proposed to be
distributed to all record holders of the Notes. Capitalized terms used herein
and not otherwise defined shall have the meaning assigned to them in the
Prospectus.
The Company hereby appoints Wells Fargo Bank Minnesota, N.A. to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Wells Fargo Bank Minnesota, N.A.
Wells Fargo Bank Minnesota, N.A. hereby accepts the appointment as Exchange
Agent and shall perform the duties and services of the Exchange Agent described
herein on the terms and conditions contained in this Agreement.
The Exchange Offer is expected to be commenced by the Company on or about
__________, 2003 (the "Commencement Date"). The Letter of Transmittal
accompanying the Prospectus is to be used by the holders of the Notes to accept
the Exchange Offer and contains instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at Midnight, New York City time, on
__________, 2003 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 (promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer and not to accept for exchange any 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 -- Conditions
of the Exchange Offer." The Company will give oral (promptly 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 set forth
herein, and such duties that are necessarily incidental thereto in good faith,
and no additional duties or responsibilities shall be implied against you.
2. You will establish an account with respect to the Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer as soon as practicable after the Commencement Date.
3. You are to examine each of the Letters of Transmittal and certificates
for the Notes or confirmations of book-entry transfers into your account at the
Book-Entry Transfer Facility ("Agent's Message") or other documents received by
you by or for holders of the Notes to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the 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 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 exchanging holder or the Book-Entry
Transfer Facility of the existence of the irregularity and the need for
fulfillment of all requirements and to take any other action as may be
reasonably necessary or advisable to cause such irregularity to be corrected.
You are not authorized to accept any tender of Notes that you reasonably deem to
be defective, unless you shall have received written notice from the Company as
provided in paragraph 4 hereof that any defect or irregularity in such tender
has been cured or waived and that such tender has been accepted by the Company.
4. Upon your determination that any tender is defective, you shall notify
the Company and, after consultation with and on the written instructions of the
Company, use reasonable efforts to notify the person tendering such Notes or the
Book-Entry Transfer Facility, as the case may be, of such determination. If
necessary, you will return the certificates evidencing such Notes in the manner
described herein. The Company shall have the absolute right to (i) reject any
and all Notes not properly tendered, (ii) determine whether any tender of Notes
is valid and (iii) reject any Notes the Company's acceptance of which would, in
the opinion of counsel for the Company, be unlawful; it being understood that
you shall have neither discretion nor responsibility with respect to such
matters. The Company also shall have the right in its sole discretion to waive
any defects, irregularities or conditions of tender as to particular Notes. The
interpretations by the Company of the terms and conditions of the Exchange
Offer, each submitted Letter of Transmittal, each submitted Notice of Guaranteed
Delivery and each other document or instrument submitted to it in connection
with the Exchange Offer (including, without limitation, the determination of
whether any tender of Notes is valid) shall be final and binding. With the
approval of either (a) the Chief Executive Officer or (b) the Senior Vice
President and Chief Financial Officer of the Company (such approval, if given
orally, to be promptly confirmed in writing), you are
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authorized to waive any irregularities in connection with any tender of Notes
pursuant to the Exchange Offer.
5. Tenders of Notes may be made only as set forth in the section of the
Prospectus captioned "The Exchange Offer -- Procedures for Tendering" or in the
Letter of Transmittal, and 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, Notes that the Company or
any other party designated by the Company in writing shall approve as having
been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
the disposition of such Notes.
7. You shall accept tenders:
a. in cases where the 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 his or her authority to so act is submitted; and
c. from persons other than the registered holder of Notes provided
that customary transfer requirements, including any applicable transfer taxes,
are fulfilled.
You shall accept partial tenders of Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Notes to the
transfer agent for split-up and return any untendered 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 of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, shall be
promptly confirmed in writing) of the Company's acceptance, promptly after the
Expiration Date, of all Notes properly tendered, and you, on behalf of the
Company, will exchange such Notes for Exchange Notes and cause such Notes to be
canceled. 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 Notes tendered promptly after notice (such notice, if given
orally, shall be promptly confirmed in writing) of acceptance of said Notes by
the Company; provided, however, that in all cases, Notes tendered pursuant to
the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such 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 Agent's Message in lieu thereof) and any other required
document. You shall issue Exchange Notes only in denominations of $1,000 or any
integral multiple thereof.
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, Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date.
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10. The Company shall not be required to exchange any 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 Notes tendered shall be given (such
notice, if given orally, shall be promptly 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 Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Conditions of 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 Notes (or effect the appropriate
book-entry transfer of the unaccepted Notes), and return any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Notes or for unaccepted Notes shall be
forwarded 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 non-receipt or non-delivery of such certificates or (b) by overnight courier
service insured for the replacement value of such certificates, provided that
the signature upon delivery requirement is not waived.
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 Notes,
and will not be required to and will make no representation as to the validity,
value or genuineness of the Exchange Offer;
b. shall not be obligated to take any legal action hereunder which
might in your good faith judgment involve any expense or liability, unless you
shall have been furnished with satisfactory indemnity;
c. shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
gross negligence, misconduct or bad faith on your part, by reason of or as a
result of the administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and 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 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 reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which 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 officer of the Company with respect
to the Exchange Offer;
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f. shall not advise any person tendering 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 Notes; and
g. may consult with counsel, which may be counsel for the Company,
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 by you
hereunder in good faith and in accordance with such advice or opinion of such
counsel.
15. 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, 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 sufficient copies of such documents to complete the initial mailing as soon
as practicable after the Commencement Date, and thereafter the Company will
provide additional copies at your request. All other requests for information
relating to the Exchange Offer shall be directed to the Chief Financial Officer
of the Company at 700 East Butterfield Road, Suite 250, Lombard, Illinois 60148.
16. You shall provide a report, in the form attached hereto as Attachment
B, by e-mail or facsimile transmission to the Company and Ropes & Gray LLP,
counsel for the Company, and such other person or persons as they may reasonably
request, weekly, and during the week immediately prior to the Expiration Date,
more frequently, if reasonably requested, up to and including the Expiration
Date. You shall also provide the Company or any such other person or persons as
the Company may reasonably request from time to time prior to the Expiration
Date with such other information as the Company or such other person may
reasonably request. In addition, you shall grant to the Company and such persons
as the Company may request reasonable access to those persons on 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 them 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 as directed
by the Company.
18. For services rendered as Exchange Agent hereunder, the Company will
pay you fees and expenses as described in Attachment C.
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 obligations 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
duties, liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
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20. The Company agrees to indemnify and hold you (and your officers,
directors, employees and agents) harmless in your capacity as Exchange Agent
hereunder against any liability, cost or expense, including reasonable
attorney's fees, arising out of or in connection with the acceptance or
administration of your duties hereunder, including, without limitation, in
connection with any act, omission, delay or refusal made by you in reasonable
reliance upon any signature, enforcement, 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 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 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 gross negligence, material breach of this
Agreement, willful misconduct or bad faith. You shall notify the Company in
writing of any 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 commencement of action. The Company shall be entitled to participate at its
own expense in the defense of any such claim or other action. You shall not
compromise or settle any such action or claim without the consent of the
Company, which consent shall not be unreasonably withheld.
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,
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. 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
constitute one and the same agreement.
23. 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.
24. 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.
25. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company, to:
United States Can Company
700 East Butterfield Road, Suite 250
Lombard, Illinois 60148
Attention: Sandra K. Vollman
Facsimile: (630) 678-8130
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with a copy to:
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Attention: Jane D. Goldstein, Esq.
Facsimile: (617) 951-7050
If to the Exchange Agent, to:
Wells Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC N9303-120
Minneapolis, MN 55479
Attention: Jane Y. Schweiger
Facsimile: (612) 667-9825
With a copy to:
Wells Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC N9303-120
Minneapolis, MN 55479
Attention: Corporate Trust - Bondholder Communications
Facsimile: (612) 667-6282
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18 and 20 shall survive the termination of this Agreement. Except as
provided in Paragraph 17, upon any termination of this Agreement, you shall
promptly deliver to the Company any funds or property (including, without
limitation, Letters of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
27. This Agreement shall be binding and effective as of the date hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
UNITED STATES CAN COMPANY
By:______________________________
Name:
Title:
Accepted as of the date
first above written:
WELLS FARGO BANK MINNESOTA, N.A.,
as Exchange Agent
By: __________________________________
Name:
Title:
ATTACHMENT A
Prospectus
Attached.
ATTACHMENT B
Form of Tender Report
Date:________________
[List Issuer & Other Addressees]
SENT BY (check one):
[ ] BY FAX: ________________________
[ ] BY E-MAIL:
Re: Notice of Tenders
With respect to Section 16 of the Exchange Agent Agreement, dated as of
_______________, we confirm the following information as of the date hereof:
1. Principal amount of Notes tendered during the past week:
$____________________. Principal amount of such Notes tendered
pursuant to a Notice of Guaranteed Delivery: $____________________.
2. Principal amount of Notes referred to in paragraph 1 above regarding
which Exchange Agent questions validity of the tender:
$____________________.
3. Aggregate principal amount of Notes tendered since the Commencement
Date as to which Exchange Agent questions the validity of the
tender: $___________________.
4. Principal amount of Notes remaining unpresented (based on
$______________ total Notes): $___________________
5. Total aggregate principal amount of Notes validly tendered since the
Commencement Date: $___________________
Wells Fargo Bank Minnesota, N.A.,
as Exchange Agent
By:____________________________________
Name:
Title:
ATTACHMENT C
Schedule of Fees
See the attached schedule.
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[WELLS FARGO LOGO]
CORPORATE TRUST SERVICES
CUSTOMIZED FIDUCIARY SERVICES
SCHEDULE OF FEES
UNITED STATES CAN COMPANY
10 7/8% SENIOR SECURED NOTES DUE 2010
FOR SERVICES AS EXCHANGE AGENT
You receive quality, cost-effective service from Wells Fargo. Our staff is
qualified and proficient, drawing on years of experience in the field. Because
we value your business, we are committed to bringing you personal and
professional service.
EXCHANGE AGENT FEE: $3,000.00
The Exchange Agent Fee covers Wells Fargo's administrative functions relating
to the delivery, receipt and inspection of the Letters of Transmittal and other
documents as applicable, coordination and execution of necessary book-entry
procedures for securities held by participants of DTC, creating periodic
reports for the Company as reasonably requested, responding promptly to written
and telephonic inquiries and issuing appropriate tax information based on the
written instruction of the Company. This also includes preparation of the Form
T-1 which is required to be filed with the registration statement.
OUT-OF-POCKET EXPENSES BILLED AT COST
Out of pocket expenses are billed at cost. Examples may include retention of
professionals (if necessary), postage, envelopes, special delivery services,
copying, etc.
Wells Fargo's acceptance of appointment is contingent upon final review and
execution of governing documents.
Billings over 30 days past due are subject to a 1.5% per month late payment
penalty of balance due.
SCHEDULE IS SUBJECT TO PERIODIC REVIEW AND ADJUSTMENT.
SEPTEMBER 3, 2003