Date
Harris Trust and Savings Bank
12th Floor
311 West Monroe Street
Chicago, Illinois 60690
Ladies and Gentlemen:
______________, a Delaware corporation, (the "Company") hereby appoints
Harris Trust and Savings Bank ("Harris Trust") to act as exchange agent (the
"Exchange Agent") in connection with an exchange offer by the Company to
exchange an aggregate principal amount of up to $____________ of its
____________________________ (the "New Notes"), which have been registered
under the Securities Act of 1933, as amended, for a like principal amount of
its outstanding _______________________ (the "Old Notes"). The terms and
conditions of the exchange offer are set forth in a Prospectus, dated
______________, 1996 (as the same may be amended or supplemented from time to
time, the "Prospectus"), and in the related Letter of Transmittal, which
together constitute the "Exchange Offer. " Capitalized terms used herein and
not defined shall have the respective meanings ascribed thereto in the
Prospectus.
On the basis of the representations, warranties and agreements of the
Company and Harris Trust contained herein and subject to the terms and
conditions hereof, the following sets forth the agreement between the Company
and Harris Trust as Exchange Agent for the Exchange Offer:
1. Appointment and Duties as Exchange Agent.
(a) The Company hereby authorizes Harris Trust to act as
Exchange Agent in connection with the Exchange Offer and Harris Trust agrees
to act as Exchange Agent in connection with the Exchange Offer. As Exchange
Agent, Harris Trust will perform those services as are outlined herein or
which are customarily performed by an exchange agent in connection with an
exchange offer of like nature, including, but not limited to, accepting
tenders of the Old Notes, assisting the Company in the preparation of the
documentation necessary to effect the transactions herein contemplated
(without assuming responsibility for such documentation, unless such
information has been furnished to the Company in writing by Harris Trust).
(b) The Company acknowledges and agrees that Harris Trust
has been retained pursuant to this Agreement to act solely as Exchange Agent
in connection with the Exchange Offer, and in such capacity, Harris Trust
shall perform such duties as are outlined herein and which are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" and
in the Letter of Transmittal; provided, however, that in no way will Harris
Trust's general duty to act in good faith and without gross negligence or
willful misconduct be discharged by the foregoing.
(c) Harris Trust will examine each of the Letters of
Transmittal (or electronic instructions transmitted by the Depository Trust
Corporation (the "DTC Transmissions") and certificates for the Old Notes and
any other documents delivered or mailed to Harris Trust by or for holders of
the Old Notes (or any Book-Entry Confirmations (as set forth in the
Prospectus) received by Harris Trust with respect to the Old Notes), to
ascertain whether: (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with the
instructions set forth therein (or that the DTC Transmission contains the
proper information required to be set forth therein) and (ii) the Old Notes
have otherwise been properly tendered (or that the Book-Entry Confirmations
are in due and proper form and contain the information required to be set
forth therein). In each case where the Letters of Transmittal or any other
documents have been improperly completed or executed (or the DTC
Transmissions are not in due and proper form or omit certain information) or
certificates for the Old Notes are not in proper form for transfer (or the
Book-Entry Confirmations are not in due and proper form or omit certain
information) or some other irregularity in connection with the tender or
acceptance of the Old Notes exists, Harris Trust will endeavor, subject to
the terms and conditions of the Exchange Offer, to advise the tendering
holders of Old Notes of the irregularity and to take any other action as may
be necessary or advisable to cause such irregularity to be corrected.
Notwithstanding the above, Harris Trust shall not be under any duty to give
any notification of any irregularities in tenders or incur any liability for
failure to give any such notification.
(d) With the approval of the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer
or any Assistant Treasurer of the Company (such approval, if given orally, to
be confirmed in writing) or any other party designated by any such officer,
Harris Trust is authorized to waive any irregularities in connection with any
tender of the Old Notes pursuant to the Exchange Offer.
(e) Tenders of the Old Notes may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned
"The Exchange Offer" and the Old Notes shall be considered properly tendered
only when tendered in accordance with such procedures set forth therein.
Notwithstanding the provisions of this paragraph, the Old Notes which the
President, any Senior Vice President, any Executive Vice President, any Vice
President or the Treasurer, any Assistant Treasurer or any other designated
officer of
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the Company, shall approve (such approval, if given orally, to be confirmed in
writing) as having been properly tendered shall be considered to be properly
tendered.
(f) Harris Trust shall advise the Company with respect to any
Old Notes received as soon as possible after 5:00 p.m., New York City time, on
the Expiration Date and accept its instructions with respect to disposition of
such Old Notes.
(g) Harris Trust shall (i) ensure that each Letter of
Transmittal and, if required pursuant to the terms of the Exchange Offer, the
related Old Notes or a bond power are duly executed (with signatures guaranteed
where required) by the appropriate parties in accordance with the terms of the
Exchange Offer; (ii) in those instances where the person executing the Letter
of Transmittal (as indicated on the Letter of Transmittal) is acting in a
fiduciary or a representative capacity, ensure that proper evidence of his or
her authority so to act is submitted; (iii) in those instances where the Old
Notes are tendered by persons other than the registered holder of such Old
Notes, ensure that customary transfer requirements, including any applicable
transfer taxes, and the requirements imposed by the transfer restrictions on
the Old Notes (including any applicable requirements for certifications, legal
opinions or other information) are fulfilled; (iv) ensure that the Old Notes
tendered in part are tendered in principal amounts of $1,000 and integral
multiples thereof; and (v) deliver certificates for the Old Notes tendered in
part to the transfer agent for split-up and shall return any untendered Old
Notes or Old Notes which have not been accepted by the Company to the holders
of such Old Notes (or in the case of Old Notes tendered by book-entry transfer,
such non-exchanged Old Notes will be credited to an account maintained with the
Book-Entry Transfer Facility) promptly after the expiration or termination of
the Exchange Offer.
(h) Upon acceptance by the Company of any Old Notes duly
tendered pursuant to the Exchange Offer (such acceptance if given orally, to be
confirmed in writing), Harris Trust will cause the New Notes in exchange
therefor to be issued as promptly as possible (subject to receipt from the
Company of appropriate certificates under the related Indenture) and Harris
Trust will deliver such New Notes on behalf of the Company at the rate of
$1,000 principal amount of New Notes for each $1,000 principal amount of the
Old Notes tendered as promptly as possible after acceptance by the Company of
the Old Notes for exchange and notice (such notice if given orally, to be
confirmed in writing) of such acceptance by the Company; provided, however,
that in all cases, the Old Notes tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by Harris Trust of certificates for such
Old Notes (or a Book-Entry Confirmation), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents (or a properly completed
DTC Transmission). Unless otherwise instructed by the Company, Harris Trust
shall issue the New Notes only in denominations of $1,000 or any integral
multiple thereof.
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(i) Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and the conditions set forth in the
Prospectus and the Letter of Transmittal, the Old Notes tendered pursuant to
the Exchange Offer may be withdrawn at any time on or prior to the Expiration
Date in accordance with the terms of the Exchange Offer.
(j) Notice of any decision by the Company not to exchange
any Old Notes tendered shall be given by the Company either orally (if given
orally, to be confirmed in writing) or in a written notice to Harris Trust.
(k) 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 "The Exchange Offer -Certain Conditions to the
Exchange Offer" or otherwise, Harris Trust shall, upon notice from the
Company (such notice if given orally, to be confirmed in writing), promptly
after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Old Notes (or effect appropriate Book-Entry
Confirmations), together with any related required documents and the Letters
of Transmittal (or DTC Transmissions) relating thereto that are in Harris
Trust's possession, to the persons who deposited such certificates.
(1) Certificates for reissued Old Notes, unaccepted Old
Notes or New Notes shall be forwarded by (a) first-class certified mail,
return receipt requested under a blanket surety bond obtained by Harris
Trust protecting Harris Trust 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 by Harris Trust separately for the replacement value
of each such certificate.
(m) Harris Trust is not authorized to pay or offer to pay
any concessions, commissions or solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any
person to solicit tenders.
(n) As Exchange Agent, Harris Trust:
(i) shall have no duties or obligations other than
those specifically set forth in the Prospectus, the Letter of
Transmittal or herein or as may be subsequently agreed to in
writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of
any of the certificates for the Old Notes deposited 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; provided, however, that in
no
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way will Harris Trust's general duty to act in good faith and without gross
negligence or willful misconduct be limited by the foregoing;
(iii) shall not be obligated to take any legal action
hereunder which might in Harris Trust's reasonable judgment
involve any expense or liability, unless Harris Trust shall
have been furnished with reasonable indemnity;
(iv) may reasonably rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security
delivered to Harris Trust and reasonably believed by Harris
Trust to be genuine and to have been signed by the proper
party or parties;
(v) may reasonably act upon any tender, statement,
request, comment, 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, which Harris Trust believes in
good faith to be genuine and to have been signed or
represented by a proper person or persons acting in a
fiduciary or representative capacity (so long as proper
evidence of such fiduciary's or representative's authority so
to act is submitted to Harris Trust) and Harris Trust examines
and reasonably concludes that such evidence properly
establishes such authority;
(vi) may rely on and shall be protected in acting
upon written or oral instructions from the President, any
Senior Vice President, any Executive Vice President, any Vice
President, the Treasurer, any Assistant Treasurer or any other
designated officer of the Company;
(vii) may consult with its own counsel with respect
to any questions relating to Harris Trust's duties and
responsibilities and the written 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 Harris
Trust hereunder in good faith and in accordance with the
written opinion of such counsel; and
(viii) shall not advise any person tendering Old
Notes pursuant to the Exchange Offer as to whether to tender
or refrain from tendering all or any portion of its Old Notes
or as to the market value, decline or appreciation in market
value of any Old Notes that may or may not occur as a result
of the Exchange Offer or as to the market value of the New
Notes.
(o) Harris Trust shall take such action as may from time to
time be requested by the Company (and such other action as Harris Trust 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
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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
tendering into (or withdrawing from) the Exchange Offer. The Company will
furnish you with copies of such documents at your request.
(p) Harris Trust shall advise orally and promptly
thereafter confirm in writing to 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 reasonably
requested) up to and including the Expiration Date, the aggregate principal
amount of the Old Notes which have been duly tendered pursuant to and in
compliance with the terms of the Exchange Offer and the items received by
Harris Trust pursuant to the Exchange Offer and this Agreement, separately
reporting and giving cumulative totals as to items properly received and
items improperly received. In addition, Harris Trust will also provide, and
cooperate in making available to the Company, or any such other person or
persons upon request (such request if made orally, to be confirmed in
writing) made from time to time, such other information as the Company may
reasonably request. Such cooperation shall include, without limitation, the
granting by Harris Trust to the Company, and such person or persons as the
Company may request, access to those persons on Harris Trust's staff who are
responsible for receiving tenders, in order to ensure that immediately prior
to the Expiration Date the Company shall have received adequate information
in sufficient detail to enable the Company to decide whether to extend the
Exchange Offer. Harris Trust shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of the Old Notes
tendered, the aggregate principal amount of the Old Notes accepted and
deliver said list to the Company.
(q) Letters of Transmittal, Book-Entry Confirmations, DTC
Transmissions and Notices of Guaranteed Delivery shall be stamped by Harris
Trust as to the date and the time of receipt thereof and shall be preserved
by Harris Trust for a period of time at least equal to the period of time
Harris Trust preserves other records pertaining to the transfer of
securities, or one year, whichever is longer, and thereafter shall be
delivered by Harris Trust to the Company. Harris Trust shall dispose of
unused Letters of Transmittal and other surplus materials by returning them
to the Company.
(r) Harris Trust hereby expressly waives any lien,
encumbrance or right of set-off whatsoever that Harris Trust may have with
respect to funds deposited with it 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
Harris Trust or for compensation owed to Harris Trust hereunder or for any
other matter.
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2. Compensation.
In consideration of Harris Trust's acceptance of the
appointment set forth in Paragraph 1 above, the Company agrees to (i) pay
Harris Trust a fee for all services rendered under the foregoing appointment of
$3,500 and (ii) reimburse Harris Trust for any reasonable out-of-pocket
expenses incurred as Exchange Agent in performing the services described
herein; provided, however, that Harris Trust shall not be entitled to
reimbursement for the fees or disbursements of its legal counsel without the
prior written consent of the Company.
3. Indemnification.
(a) The Company hereby agrees to protect, defend, indemnify
and hold harmless Harris Trust against and from any and all costs, losses,
liabilities, expenses (including reasonable counsel fees and disbursements) and
claims imposed upon or asserted against Harris Trust on account of any action
taken or omitted to be taken by Harris Trust in connection with its acceptance
of or performance of its duties under this Agreement and the documents related
thereto as well as the reasonable costs and expenses of defending itself
against any claim or liability arising out of or relating to this Agreement and
the documents related thereto. This indemnification shall survive the release,
discharge, termination, and/or satisfaction of this Agreement. Anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Harris Trust's bad faith, gross negligence or willful
misconduct. In no case shall the Company be liable under this indemnification
agreement with respect to any claim against Harris Trust unless the Company
shall be notified by Harris Trust, by letter, of the written assertion of a
claim against Harris Trust or of any other action commenced against Harris
Trust, reasonably promptly after Harris Trust shall have received any such
written assertion or shall have been served with a summons in connection
therewith. 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 may assume the defense of any pending or threatened action against
Harris Trust in respect of which indemnification may be sought hereunder, in
which case the Company shall not thereafter be responsible for the fees and
disbursements of legal counsel for Harris Trust under this paragraph; provided
that the Company shall not be entitled to assume the defense of any such action
if the named parties to such action include both the Company and Harris Trust
and representation of both parties by the same legal counsel would, in the
written opinion of counsel for Harris Trust, be inappropriate due to actual or
potential conflicting interests between them. It is understood that the Company
shall not be liable under this paragraph for the fees and disbursements of more
than one legal counsel for Harris Trust. In the event that the Company shall
assume the defense of any such suit, the Company shall not therewith be liable
for the fees and expenses of any counsel retained by Harris Trust.
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(b) Harris Trust agrees that, without the prior written
consent of the Company (which consent shall not be unreasonably withheld), it
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not Harris Trust or the Company or
any of its directors, officers and controlling persons is an actual or
potential party to such claim, action or proceeding).
4. Tax Information.
(a) Harris Trust shall arrange to comply with all
requirements under the tax laws of the United States, including those
relating to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service. The Company
understands that Harris Trust is required, in certain instances, to deduct
31% with respect to interest paid on the New Notes and proceeds from the
sale, exchange, redemption or retirement of the New Notes from holders of the
New Notes who have not supplied their correct Taxpayer Identification Number
or required certification. Such funds will be turned over by Harris Trust to
the Internal Revenue Service.
(b) Harris Trust shall notify the Company of the amount of
any transfer taxes payable in respect of the exchange of the Old Notes and,
upon receipt of written approval from the Company 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 the Old Notes, a
check in the amount of all transfer taxes so payable, and the Company shall
reimburse Harris Trust for the amount of any and all transfer taxes payable
in respect of the exchange of the Old Notes; provided, however, that Harris
Trust shall reimburse the Company for amounts refunded to it in respect of
its payment of any such transfer taxes, at such time as such refund is
received by Harris Trust.
5. Governing Law.
This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required
thereby.
6. Notices.
Any communication or notice provided for hereunder shall be
in writing and shall be given (and shall be deemed to have been given upon
receipt) by delivery in person, telecopy, or overnight delivery or by
registered or certified mail (postage prepaid, return receipt requested) to
the applicable party at the addresses indicated below:
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If to Harris Trust:
311 West Monroe Street
12th Floor
Chicago, Illinois 60690
Telecopier No.: (312) 461-3525
Attention: Judy Bartolini, Vice President
If to the Company:
Address
City, State Zip Code
Telecopier No.: ( ) -
Attention: Name and Title
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. Parties in Interest.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto expressly
agree that no holder of the Old Notes or the New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
8. Counterparts; Severability.
This Agreement may be executed in one or more counterparts,
and by different parties hereto on separate counterparts, each of which when
so executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement. If any term or other provision
of this Agreement or the application thereof is invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other provisions
of this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the agreements contained herein is not
affected in any manner adverse to any party. Upon such determination that any
term or provision or the application thereof is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible
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in a mutually acceptable manner in order that the agreements contained herein
may be performed as originally contemplated to the fullest extent possible.
9. Headings.
The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
10. Entire Agreement: Amendment.
This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof. This Agreement may
not be amended or modified nor may any provision hereof be waived except in
writing signed by each party to be bound thereby.
11. Termination.
This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written
notice by Harris Trust from the Company stating that this Agreement is
terminated, (c) one year following the date of this Agreement, or (d) the
time and date on which this Agreement shall be terminated by mutual consent
of the parties hereto.
12. Miscellaneous.
Harris Trust hereby acknowledges receipt of the Prospectus
and the Letter of Transmittal and the Notice of Guaranteed Delivery and
further acknowledges that it has examined each of them. Any inconsistency
between this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal and the Notice of Guaranteed Delivery (as they may be amended or
supplemented from time to time), on the other hand, shall be resolved in
favor of the latter three documents, except with respect to the duties,
liabilities and indemnification of Harris Trust as Exchange Agent which shall
be controlled by this Agreement.
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Kindly indicate your willingness to act as Exchange Agent
and Harris Trust's acceptance of the foregoing provisions by signing in the
space provided below for that purpose and returning to the Company a copy of
this Agreement so signed, whereupon this Agreement and Harris Trust's
acceptance shall constitute a binding agreement between Harris Trust and the
Company.
Very truly yours,
Company Name
By: Name:
Title:
Accepted and agreed to as of the date first written above:
HARRIS TRUST AND SAVINGS BANK
By: Name:
Title:
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