EXHIBIT 99.7
FORM OF EXCHANGE AGENT AGREEMENT
, 2004
EXCHANGE AGENT AGREEMENT
U.S. Bank Trust National Association
Dear :
LNR Property Corporation, a Delaware corporation (the "Company"), proposes
to make an offer (the "Exchange Offer") to exchange up to $400,000,000 aggregate
principal amount of its 7.25% Series B Senior Subordinated Notes due 2013 (the
"Exchange Notes"), for a like principal amount of its outstanding 7.25% Series A
Senior Subordinated Notes due 2013 (the "Private Notes"). The terms and
conditions of the Exchange Offer are set forth in a prospectus (the
"Prospectus") included in the Company's registration statement on form S-4 (File
No. 333- ) (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "SEC"), proposed to be distributed to all record
holders of the Private Notes. The Private Notes and the Exchange Notes are
collectively referred to herein as the "Notes." Capitalized terms used herein
and not defined shall have the respective meanings ascribed to them in the
Prospectus.
The Company hereby appoints U.S. Bank Trust National Association to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to U.S. Bank Trust National
Association.
The Exchange Offer is expected to be commenced by the Company on or about
, 2004. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Private Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Private
Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
, 2004, 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 (confirmed in writing) or written notice to you before 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, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Private
Notes not theretofore accepted for exchange. The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
non-acceptance 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
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer," in the Letter of Transmittal accompanying the Prospectus
or as specifically set forth herein; provided, however, that in no way will
your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
2. You will establish an account with respect to the Private Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Private Notes by causing the Book-Entry Transfer Facility to transfer such
Private Notes into your account in accordance with the Book-Entry Transfer
Facility's procedures for such transfer.
3. You are to examine each of the Letters of Transmittal and
confirmations of book-entry transfers of Private Notes into your account at
the Book-Entry Transfer Facility and any other documents delivered or
mailed to you by or for holders of the Private 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 that such book-entry confirmations are
in due and proper form and contain the information required to be set forth
therein, and (ii) the Private 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 where book-entry confirmations are not
in due and proper form or omit certain information, or some other
irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman, the President and Chief
Executive Officer, any of the Executive Vice Presidents or the General
Counsel of the Company (such approval, if given orally, to be confirmed in
writing) or any other person designated by such an officer in writing, you
are authorized to waive any irregularities in connection with any tendency
of Private Notes pursuant to the Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering," and Private 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, Private Notes which the Chairman, the President and Chief
Executive Officer, any of the Executive Vice Presidents or the General
Counsel or any other officer of the Company designated by any such person
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Company with respect to any Private Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in cases where the Private 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 so to act is
submitted; and
(c) from persons other than the registered holder of Private Notes
provided that customary transfer requirements, including those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated and as
permitted in the Letter of Transmittal and return any untendered Private Notes
to the holder (or 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,
to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Private Notes properly tendered and you, on behalf
of the Company, will exchange such Private Notes for Exchange Notes and
cause such Private 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 the Private Notes
tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Private Notes by the Company;
provided, however, that in all cases, Private Notes tendered pursuant to
the Exchange Offer will be exchanged only after timely receipt by you of
confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility, a properly completed and, except as described in the
section of the prospectus captioned "The Exchange Offer -- Procedures for
Tendering," duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees and any other required documents. Unless
otherwise instructed by the Company, 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, Private 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.
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10. The Company shall not be required to exchange any Private 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 Private
Notes tendered shall be given (and 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 Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those unaccepted
Private Notes by appropriate book-entry transfer, together with any related
required documents and the Letters of Transmittal relating thereto that are
in your possession, to the persons who surrendered them.
12. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to
solicit tenders.
13. As Exchange Agent hereunder, you:
(a) 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 by you and the
Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates for the Private Notes deposited with you
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;
(c) will not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you will have been furnished with reasonable indemnity;
(d) may rely on and will be protected in acting in reliance upon
any certificate, instrument, opinion, notice, letter, telegram 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;
(e) may 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 you shall in
good faith believe to be genuine or to have been signed or represented
by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your 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 you
hereunder in good faith and in accordance with the written opinion of
such counsel; and
(h) will not advise any person tendering Private Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all
or any portion of Private Notes or as to the market value, decline or
appreciation in market value of any Private Notes that may or may not
occur as a result of the Exchange Offer or as to the market value of the
Exchange Notes;
provided, however, that in no way will your general duty to act in good
faith and without gross negligence or willful misconduct be limited by
the foregoing.
14. You will 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 (as defined in the
Prospectus) 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 copies of such documents at your request.
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15. You will advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. of the
Company (telephone number (▇▇▇) ▇▇▇-▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇),
and such other person or persons as the Company may request, daily up to
and including the Expiration Date as to the aggregate principal amount of
Private Notes which have been duly tendered pursuant to the Exchange Offer
and the items received by you 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, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting
by you to the Company and such person as the Company may request of 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 it
to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal
amount of Private Notes tendered, the aggregate principal amount of Private
Notes accepted and the identity of any Participating Broker-Dealers and the
aggregate principal amount of Exchange Notes delivered to each, and deliver
said list to the Company.
16. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you 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, or one year, whichever is longer,
and thereafter shall be delivered by you to the Company. You shall dispose
of unused Letters of Transmittal and other surplus materials as instructed
by the Company.
17. 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 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 you or for compensation owed to you
hereunder.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them.
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.
20. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses arising
out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, 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 Private 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 Private
Notes; provided, however, that 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 your gross negligence or willful misconduct. In no case shall the
Company be liable under this indemnity with respect to any claim against
you unless the Company shall be notified by you, by letter or cable or by
facsimile which is confirmed by letter, of the written 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 notice of
commencement of action. 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 you in respect of which indemnification may be
sought hereunder, in which case the Company shall not thereafter be
responsible for the subsequently-incurred fees and disbursements of legal
counsel for you under this paragraph so long as the Company shall retain
counsel reasonably satisfactory to you to defend such suit; 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 you and the Company and
representation of both parties by the same legal counsel would, in the
written opinion of your counsel, be inappropriate due to actual or
potential conflicting interests between you
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and the Company. You understand and agree that the Company shall not be
liable under this paragraph for the fees and expenses of more than one
legal counsel for you.
21. You 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 you are required, in
certain instances, to deduct twenty-eight percent (28%) with respect to
interest paid on the Exchange Notes and proceeds from the sale, exchange,
redemption or retirement of the Exchange Notes from holders who have not
supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
22. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Private Notes and, upon receipt of a
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 Private Notes, your check
in the amount of all transfer taxes so payable, and the Company shall
reimburse you for the amount of any and all transfer taxes payable in
respect of the exchange of Private Notes; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such refund is received
by you.
23. 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, and without regard to conflicts of law principles that would
apply the law of any other jurisdictions.
24. 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 of the foregoing, the parties hereto
expressly agree that no holder of Private Notes or Exchange Notes shall
have any right, benefit or remedy of any nature whatsoever under, or by
reason of, this Agreement.
25. 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
shall constitute one and the same agreement.
26. 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.
27. 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.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed
to it, at its address or fax number set forth below:
if to the Company, to:
LNR Property Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
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with a copy to:
▇▇▇▇▇▇▇▇ Chance US LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Exchange Agent, to:
US Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 17, 19, 21 and 23 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property then
held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
LNR PROPERTY CORPORATION
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
Accepted as of the date first above
written:
US BANK TRUST NATIONAL ASSOCIATION,
as Exchange Agent
By:
-------------------------------------
Name:
Title:
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