Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Pre-Effective Amendment to Registration of 161 789K
Securities Issued in a
Business-Combination Transaction
2: EX-5 (Opinion of O'Sullivan) 2 9K
3: EX-8 (Opinion of O'Sullivan, Reguarding Tax) 2 9K
4: EX-12.1 (Computation of Ratio of Earnings) 1 8K
5: EX-99.5 (Form of Exchange Agmt) 11 33K
EX-99.5 — (Form of Exchange Agmt)
| EX-99.5 | 1st Page of 11 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 99.5
UNITED STATES TRUST COMPANY OF NEW YORK
EXCHANGE AGENT AGREEMENT
April 30, 1997
United States Trust
Company of New York,
114 West 47th Street, 25th Floor
New York, New York 10036
Attention: Cynthia Chaney
Ladies and Gentlemen:
CFP Holdings, Inc., a Delaware corporation (the "Company"), is
offering to exchange (the "Exchange Offer") its 11-5/8% Series B Senior
Guaranteed Notes due 2004 (the "New Notes") for an equal principal amount of
its 11-5/8% Senior Guaranteed Notes due 2004 (the "Old Notes" and, together
with the New Notes, the "Notes"), pursuant to a prospectus (the "Prospectus")
included in the Company's Registration Statement on Form S-4 (File No. 333-
), as amended (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "SEC"). The term "Expiration Date" shall mean
5:00 p.m., New York City time, on ____________,1997, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, United States Trust
Company of New York, will act as the Exchange Agent for the Exchange Offer
(the "Exchange Agent"). A copy of the Prospectus is attached hereto as
Exhibit A. Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter
of Transmittal"), the form of the notice of guaranteed delivery (the "Notice
of Guaranteed Delivery"), the form of letter to brokers and the form of
letter to clients (collectively, the "Tender Documents") to be used by
holders of Old Notes (the "Holders") to surrender Old Notes in order to
receive New Notes pursuant to the Exchange Offer are attached hereto as
Exhibit B.
The Company hereby appoints you to act as Exchange Agent in
connection with the Exchange Offer. In carrying out your duties as Exchange
Agent, you are to act in accordance with the following provisions of this
Agreement:
1. You are to mail the Prospectus and the Tender Documents to all
of the Holders and participants on the day that you are notified by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter, and
to make subsequent mailings thereof at the Company's request to any persons
who become Holders prior to the Expiration Date and to any persons as may
from time to time be requested by the Company. All mailings pursuant to this
Section 1 shall be by first class mail, postage prepaid, unless otherwise
specified by the Company. You shall also 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 Old Notes in
(or withdrawing tenders of Old Notes from) the Exchange Offer. All other
requests for information relating to the Exchange Offer shall be directed to
the Company, Attention: Eric W. Ek, Vice President, Chief Financial Officer
and Secretary, CFP Holdings, Inc. 1117 West Olympic Boulevard, P.O. Box 1027,
Montebello, California 90640, telephone (213) 727-0900, facsimile (213)
727-0412.
2. In the event that any of the holders does not tender
electronically, you are to examine the Letters of Transmittal and the Old
Notes and other documents delivered or mailed to you, by or for the Holders,
prior to the Expiration Date, to ascertain whether (i) the Letters of
Transmittal are properly executed and completed in accordance with the
instructions set forth therein,(ii) the Old Notes are in proper form for
transfer and (iii) all other documents submitted to you are in proper form.
In each case where a Letter of Transmittal or other document has been
improperly executed or completed or, for any other reason, is not in proper
form, or some other irregularity exists, you are authorized to endeavor to
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take such action as you consider appropriate to notify the tendering Holder
of such irregularity and as to the appropriate means of resolving the same.
Determination of questions as to the proper completion or execution of the
Letters of Transmittal, or as to the proper form for transfer of the Old
Notes or as to any other irregularity in connection with the submission of
Letters of Transmittal and/or Old Notes and other documents in connection
with the Exchange Offer, shall be made by the officers of, or counsel for,
the Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall be
final and binding.
3. In the event of any extension, termination or amendment of the
Exchange Offer, the Company shall notify the Holders thereof by press release
on the Dow Jones News Service or by such other method as the Company may
determine in its sole discretion and, if appropriate, you shall assist the
Company in the delivery of such notice or any related documentation at the
Company's expense. In the event of any such termination, you will return all
tendered Old Notes to the persons entitled thereto, at the request and
expense of the Company or its counsel, O'Sullivan Graev & Karabell, LLP.
4. Tender of the Old Notes may be made only as set forth in the
Letter of Transmittal or by an Agent's Message. Notwithstanding the
foregoing, tenders which the Company shall approve in writing as having been
properly tendered shall be considered to be properly tendered. Letters of
Transmittal and Notices of Guaranteed Delivery shall be recorded by you as to
the date and time of receipt and shall be preserved and retained by you at
the Company's expense for five years. New Notes are to be issued in exchange
for Old Notes pursuant to the Exchange Offer only (i) against deposit with
you prior to the Expiration Date or, in the case of a tender in accordance
with the guaranteed delivery procedures outlined in Instruction 5 of the
Letter of Transmittal, within three New York Stock Exchange trading days
after the Expiration Date of the Exchange Offer, together with executed
Letters of Transmittal and any other documents required by the Exchange Offer
or (ii) in the event that the Holder is a participant in the Depository Trust
Company ("DTC") system, by delivery of an Agent's Message and by the
utilization of DTC's Automated Tender Offer Program ("ATOP") and any evidence
required by the Exchange Offer, in which event delivery of a Letter of
Transmittal is not required.
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You are hereby directed to establish an account with respect to the
Old Notes at The Depositary Trust Company (the "Book Entry Transfer
Facility") within two days after the Effective Date of the Exchange Offer in
accordance with SEC Regulation 240.17 Ad. Any financial institution that is
a participant in the Book Entry Transfer Facility system may, until the
Expiration Date, make book-entry delivery of the Old Notes by causing the
Book Entry Facility to transfer such Notes into your account in accordance
with the procedure for such transfer established by the Book Entry Transfer
Facility. In every case, however, a Letter of Transmittal (or a manually
executed facsimile thereof) or an Agent's Message, properly completed and
duly executed, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Exchange Offer
must be complied with.
5. Upon the oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing, to (i) Eric W. Ek,
Vice President, Chief Financial Officer and Secretary, CFP Holdings, Inc.,
1117 West Olympic Boulevard, P.O. Box 1027, Montebello, California 90640,
telephone (213) 727-0900, facsimile (213) 727-0412, and (ii) Daniel Rayner,
Esq., O'Sullivan Graev & Karabell, LLP, 30 Rockefeller Plaza, New York, New
York 10112, telephone (212) 408-2400, facsimile (212) 408-2420 or such other
persons as the Company may reasonably request, the aggregate number and
principal amount of Old Notes tendered to you and the number and principal
amount of Old Notes properly tendered that day. Furthermore, you shall
transmit copies of all Agent's Messages (as defined in the Prospectus)
received in connection with ATOP to the aforementioned persons as they are
received. In addition, you will also inform the aforementioned persons, upon
oral request made from time to time (with written confirmation of such
request thereafter) prior to the Expiration Date, of such information as they
or any of them may reasonably request.
6. Upon the terms and subject to the conditions of the Exchange
Offer, delivery of New Notes to be issued in exchange for accepted Old Notes
will be made by you promptly after acceptance of the tendered Old Notes. The
Company shall deposit with you a sufficient quantity of New Notes in order
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for you to timely meet the terms and conditions of the Exchange Offer, and
you shall not issue any New Notes until you have received a sufficient number
of New Notes to carry out the requisite deliveries pursuant to the terms of
the Exchange Offer. You will hold all items which are deposited for tender
with you after 5:00 p.m., New York City time, on the Expiration Date pending
further instructions from an officer of the Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder
(i) to furnish to you an affidavit of loss and, if required by the Company, a
bond of indemnity in an amount and evidenced by such certificate or
certificates of a surety, as may be satisfactory to you and the Company, and
(ii) to execute and deliver an agreement to indemnify the Company and you in
such form as is acceptable to you and the Company. The obligees to be named
in each such indemnity bond shall include the Company and you. You shall
report to the Company the names of all Holders who claim that their Old Notes
have been lost or destroyed and the principal amount of such Old Notes.
8. As soon as practicable after the Expiration Date after you mail
or deliver to a Holder the New Notes that such Holder may be entitled to
receive, you shall arrange for cancellation of the Old Notes submitted to you
or returned by DTC in connection with ATOP. Such Old Notes shall be
forwarded to United States Trust Company of New York, as trustee (the
"Trustee"), under the Indenture dated as of January 28, 1997, governing the
Notes, for cancellation and retirement as you are instructed by the Company
(or a representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company
shall pay you the amounts set forth on Exhibit C hereto.
10. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other person
or to engage or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
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(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder or any New
Notes, any Tender Documents or other documents prepared by the Company
in connection with the Exchange Offer, the Prospectus or any
signatures or endorsements other than your own, and will not be
required to make and will not make any representations as to the
validity, sufficiency, value or genuineness of the Exchange Offer or
any other disclosure materials in connection therewith; provided,
however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you shall have been furnished with an indemnity reasonably
satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
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taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of
the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes;
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith;
(h) shall have no obligation to make any payment of any type
hereunder unless sufficient funds have been deposited with you to pay
in full all such amounts; and no provision of this Agreement shall
require you to risk your own funds or otherwise incur any financial
liability in the performance of any of your duties or exercise of your
rights hereunder;
(i) are acting in a ministerial capacity as the Company's agent
hereunder and no trust or other fiduciary relationship shall be
established by this Agreement, either with the Company or any other
party; and
(j) may rely upon any statement, consent, agreement or other
instrument not only as to its due execution, its validity, and the
effectiveness of its provisions, but also as to the truth and accuracy
of any information therein, which you shall in good faith believe to
be genuine or to have been represented or signed by a proper person or
persons.
12. The Company covenants and agrees to indemnify and hold harmless
United States Trust Company of New York, and its officers, directors,
employees, agents and affiliates (collectively, the "Indemnified Parties" and
each an "Indemnified Party") against any loss, liability or reasonable
expense of any nature (including reasonable attorneys' and other fees and
expenses) incurred in connection with the administration of the duties of the
Indemnified Parties hereunder in accordance with this Agreement; provided,
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however, such Indemnified Party shall use its best efforts to notify the
Company by letter, or by cable, telex or telecopier confirmed by letter, of
the written assertion of a claim against such Indemnified Party, or of any
action commenced against such Indemnified Party, promptly after but in any
event within 10 days of the date such Indemnified Party shall have received
any such written assertion of a claim or shall have been served with a
summons, or other legal process, giving information as to the nature and
basis of the claim; provided, however, that failure to so notify the Company
shall not relieve the Company of any liability which it may otherwise have
hereunder except such liability that is a direct result of such Indemnified
Party's failure to so notify the Company. The Company shall be entitled to
participate at its own expense in the defense of any such claim or legal
action and if the Company so elects or if the Indemnified Party in such
notice to the Company so directs, the Company shall assume the defense of any
suit brought to enforce any such claim. In the event the Company assumes
such defense, the Company shall not be liable for any fees and expenses
thereafter incurred by such Indemnified Party, except for any reasonable fees
and expenses of such Indemnified Party incurred as a result of the need to
have separate representation because of a conflict of interest between such
Indemnified Party and the Company. You shall not enter into a settlement or
other compromise with respect to any indemnified loss, liability or expense
without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall
be construed and enforced in accordance with the laws of the State of New
York without regard to the conflicts of laws provisions thereof, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or Federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
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claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of
any such dispute and agree that delivery or mailing of any process or other
papers in the manner provided herein, or in such other manner as may be
permitted by law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement and the Tender Documents, as they may
from time to time be supplemented or amended, shall be resolved in favor of
the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
16. This Agreement may be executed in one 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.
17. 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.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Notes or New Notes, funds or property then
held by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing
and shall be deemed to be duly given if delivered or mailed first class
certified or registered mail, postage prepaid, or telecopied as follows:
If to Company: CFP Holdings, Inc.
1117 West Olympic Boulevard
Montebello, California 90640
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Attn: Eric W. Ek
Telephone: (213) 727-0900
Telecopy: (213) 727-0412
and a copy to: O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
Attn: Daniel Rayner, Esq.
Telephone: (212) 408-2400
Telecopy: (212) 408-2420
If to you: United States Trust
Company of New York,
114 West 47th Street, 25th Floor
New York, NY 10036
Attn: Cynthia Chaney
Telephone: (212) 852-
Telecopy: (212) 852-
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purpose.
20. This Letter Agreement and all of the obligations hereunder
shall be assumed by any and all successors and assigns of the Company.
21. This Agreement and the other agreements, documents and exhibits
referred to herein constitute the entire agreement between the parties
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements and undertakings of the parties in connection
herewith.
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If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
CFP HOLDINGS, INC.
By:
---------------------------------
Name: Eric W. Ek
Title: Vice President, Chief
Financial Officer and
Secretary
Agreed to this 30th day of April, 1997
UNITED STATES TRUST COMPANY OF NEW YORK,
By:
--------------------------------
Name: Cynthia Chaney
Title: Assistant Vice President
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-4/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 5/2/97 | | | | | | | None on these Dates |
| | 4/30/97 | | 1 |
| | 1/28/97 | | 5 |
| List all Filings |
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