EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of____________________, 1999 between
IBJ Whitehall Bank & Trust Company, a banking corporation organized under the
laws of the State of New York, as Exchange Agent (the "Agent") and Compass
Aerospace Corporation, a corporation organized under the laws of the State of
Delaware (the "Company").
The Company proposes to exchange $110.0 million aggregate principal
amount of the Company's 101/8% Series B Senior Subordinated Notes due 2005,
(the "New Notes" or "Exchange Notes") in exchange (the "Exchange Offer") for
an equal aggregate principal amount of the Company's outstanding 10 1/8%
Senior Subordinated Notes due 2005, (the "Old Notes") pursuant to the
prospectus (the "Prospectus") dated as of____________________________ 1999
and the accompanying Letter of Transmittal. New Notes will be issued in
integral multiples of $1,000 to each tendering holder of the Old Notes. The
Exchange Offer will terminate at 5:00 p.m. New York City Time
on_____________________________, unless extended by the Company in its sole
discretion (the "Expiration Date"). The New Notes are to be issued by the
Company pursuant to the terms of an Indenture dated as of April 21, 1998 (the
"Indenture") between the Company, and IBJ Whitehall Bank & Trust Company
(formerly known as IBJ Schroder Bank & Trust Company), as trustee (the
"Trustee").
Subject to the provisions hereof, the Company hereby appoints and the
Agent hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Old Notes
(the "Certificate") in accordance with the form of Letter of Transmittal
attached hereto (the "L/T") and with the terms and conditions set forth
herein and under the caption "The Exchange Offer" in the Prospectus.
The Agent has received the following documents in connection with its
appointment:
(1) L/T
(2) a form of Notice of Guaranteed Delivery
(3) the Prospectus
The Agent is authorized and hereby agrees to act as follows:
(a) to address, and deliver by hand or next day courier, a complete set
of the Exchange Offer Documents to each person who, prior to the
Expiration Date, becomes a registered holder of Old Notes promptly
after such person becomes a registered holder of Old Notes;
(b) to receive all tenders of Old Notes made pursuant to the Exchange Offer
and stamp the L/T with the day, month and approximate time of receipt;
(c) to examine each L/T and Old Notes received to determine that all
requirements necessary to constitute a valid tender have been met. The
Agent shall be entitled to rely on the electronic messages sent by the
Depository Trust Company ("DTC") regarding ATOP (Automated Tender Offer
Program) delivery of the Notes to the Agent's account at DTC from the DTC
participants listed on the DTC position listing provided to the Agent;
(d) to take such actions necessary and appropriate to correct any irregularity
or deficiency associated with any tender not in proper order;
(e) to follow oral or written instructions given by the Chairman of the Board,
President, Chief Financial Officer or the Secretary of the Company, with
respect to the waiver of any irregularities or deficiencies associated with
any tender;
(f) to hold all valid tenders subject to further instructions from the Chairman
of the Board, President, Chief Financial officer or the Secretary of the
Company;
(g) to render a written report, in the form of Exhibit A attached hereto, on
each business day during the Exchange Offer and promptly confirm, by
telephone, the information contained therein to N. Paul Brost, Chief
Financial Officer of the Company at 310-552-0607.
(h) to follow and act upon any written amendments, modifications or supplements
to these instructions, any of which may be given to the Agent by the
President, Chairman of the Board, Chief Financial Officer or the Secretary
of the Company or such other person or persons as they shall designate in
writing;
(i) to return to the presentors, in accordance with the provisions of the L/T,
any Old Notes that were not received in proper order and as to which the
irregularities or deficiencies were not cured or waived;
(j) in the event the Exchange Offer is consummated, to deliver authenticated
Exchange Notes to tendering Noteholders, in accordance with the
instructions of such Noteholder's specified in the respective L/T's, as
soon as practicable after receipt thereof;
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(k) to determine that all endorsements, guarantees, signatures, authorities,
stock transfer taxes (if any) and such other requirements are fulfilled in
connection with any request for issuance of the Exchange Notes in a name
other than that of the registered owner of the Old Notes;
(l) to deliver to, or upon the order of, the Company all Old Notes received
under the Exchange Offer, together with any related assignment forms and
other documents; and
(m) subject to the other terms and conditions set forth in this Agreement to
take all other actions reasonable and necessary in the good faith judgment
of the Agent, to effect the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those specifically set forth
herein;
(b) not be required to refer to any documents for the performance of its
obligations hereunder other than this Agreement, the L/T and the documents
required to be submitted with the L/T; other than such documents, the Agent
will not be responsible or liable for any terms, directions or information
in the Prospectus or any other document or agreement unless the Agent
specifically agrees thereto in writing;
(c) not be required to act on the directions of any person, including the
persons named above, unless the Company provides a corporate resolution to
the Agent or other evidence satisfactory to the Agent of the authority of
such person;
(d) not be required to and shall make no representations and have no
responsibilities as to the validity, accuracy, value or genuineness of (i)
the Exchange Offer, (ii) any Certificates, L/T's or documents prepared by
the Company in connection with the Exchange Offer or (iii) any signatures
or endorsements, other than its own;
(e) not be obligated to take any legal action hereunder that might, in its
judgement, involve any expense or liability, unless it has been furnished
with reasonable indemnity by the Company;
(f) be able to rely on and shall be protected in acting on the written or oral
instructions with respect to any matter relating to its actions as Agent
specifically covered by this Agreement, of any officer of the Company
authorized to give instructions under paragraph (g) or (h) above;
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(g) be able to rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, letter, telegram or any other document or
security delivered to it and believed by it reasonably and in good faith to
be genuine and to have been signed by the proper party or parties;
(h) not be responsible for or liable in any respect on account of the identity,
authority or rights of any person executing or delivering or purporting to
execute or deliver any document or property under this Agreement and shall
have no responsibility with respect to the use or application of any
property delivered by it pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it (including counsel for
the Company or staff counsel of the Agent) 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 it hereunder in good
faith and in accordance with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not advise, any person
delivering an L/T pursuant to the Exchange Offer as to the value of the
consideration to be received;
(k) not be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own gross negligence, willful
misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or modification of this
Agreement or any of the terms hereof, unless evidenced by a writing
delivered to the Agent signed by the proper authority or authorities and,
if the Agent's duties or rights are affected, unless the Agent shall give
its prior written consent thereto;
(m) have no duty to enforce any obligation of any person to make delivery, or
to direct or cause any delivery to be made, or to enforce any obligation of
any person to perform any other act; and
(n) have the right to assume, in the absence of written notice to the contrary
from the proper person or persons, that a fact or an event by reason of
which an action would or might be taken by the Agent does not exist or has
not occurred without incurring liability for any action taken or omitted,
or any action suffered by the Agent to be taken or omitted, in good faith
or in the exercise of the Agent's best judgement, in reliance upon such
assumption.
The Agent shall be entitled to compensation as set forth in Exhibit B attached
hereto.
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The Company covenants and agrees to reimburse the Agent for,
indemnify it against, and hold it harmless from any and all reasonable costs
and expenses (including reasonable fees and expenses of counsel and allocated
cost of staff counsel) that may be paid or incurred or suffered by it or to
which it may become subject without gross negligence, willful misconduct or
bad faith on its part by reason of or as a result of its compliance with the
instructions set forth herein or with any additional or supplemental written
or oral instructions delivered to it pursuant hereto, or which may arise out
of or in connection with the administration and performance of its duties
under this Agreement. The Company agrees to promptly notify the Agent of any
extension of the Expiration Date.
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York and shall inure to the benefit of, and the
obligations created hereby shall be binding upon, the successors and assigns
of the parties hereto. The parties agree to submit and to the exclusive
jurisdiction of the federal or state courts located in the State of New York,
New York County.
Unless otherwise expressly provided herein, all notices, requests,
demands and other communications hereunder shall be in writing, shall be
delivered by hand, facsimile or by First Class Mail, postage prepaid, shall
be deemed given when received and shall be addressed to the Agent and the
Company at the respective addresses listed below or to such other addresses
as they shall designate from time to time in writing, forwarded in like
manner.
If to the Agent, to: IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Attention: Reorganization Operations Dept.
Telephone: (212) 858-2103
Facsimile: (212) 858-2611
with copies to: IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Attn: Corporate Finance Trust Services
Telephone: (212) 858-2657
Facsimile: (212) 858-2952
If to the Company, to: Compass Aerospace Corporation
1501 Hughes Way, Suite 400
Long Beach, California 90810
Attn: N. Paul Brost
Telephone: (310) 522-0600
Facsimile: (310) 522-0601
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with copies to: Morgan, Lewis & Bockius LLP
300 South Grand Avenue, 22nd Floor
Los Angeles, California 90071
Attn: Peter P. Wallace, Esq.
Telephone: (213) 612-2532
Facsimile: (213) 612-2554
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by their officers thereunto duly authorized, all
as of the day and year first above written.
IBJ WHITEHALL BANK & TRUST COMPANY
By:
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COMPASS AEROSPACE CORPORATION
By:
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EXHIBIT A
SAMPLE REPORT
Date:_____________________________
Report Number:____________________
As of Date:_______________________
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated_______, 1999, we hereby render
the following report:
Principal Amount previously received: ________________
Principal Amount received today: ________________
Principal Amount received against Guaranteed Deliveries: ________________
Principal Amount withdrawn today: ________________
TOTAL PRINCIPAL AMOUNT RECEIVED TO DATE: ________________
________________
RECAP OF PRINCIPAL AMOUNT REPRESENTED BY GUARANTEES
Guarantees previously outstanding: ________________
Guarantees received today: ________________
Guarantees settled today: ________________
Guarantees withdrawn today: ________________
Guarantees outstanding: ________________
TOTAL PRINCIPAL AMOUNT AND GUARANTEES OUTSTANDING: ________________
________________
Very truly yours,
Reorganization Operations Dept.
EXHIBIT B
COMPENSATION
THE AGENT FOR SERVING AS THE EXCHANGE AGENT
PURSUANT TO THIS AGREEMENT, SHALL RECEIVE A FEE OF
$2,500, PAYABLE UPON COMMENCEMENT OF THE EXCHANGE
OFFER, AND THE AGENT'S OUT-OF-POCKET EXPENSES
INCURRED IN CONNECTION WITH COMPLETING ITS DUTIES
PURSUANT TO THIS AGREEMENT.