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EXCHANGE AGENT AGREEMENT
Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Trust Trustee Administration
Holdings (Cayman Islands) Ltd., a Cayman Islands exempted limited liability Issuers and WH Capital Corporation, a Nevada corporation (the "Issuers"), propose to make an offer
(the "Exchange Offer") to exchange all of their outstanding 91/2% Outstanding Notes due 2011 (the "Outstanding Notes") for their 91/2% New Notes due 2011 (the "New
Notes"). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus, dated [ ], 2004 (the "Prospectus"),
proposed to be distributed to all record holders of the
Outstanding Notes. The Outstanding Notes and the New Notes are collectively referred to herein as the "Securities".
Issuers hereby appoint The Bank of New York to act as exchange agent (the "Exchange Agent") in connection with the Exchange Offer. References hereinafter to "you" shall refer to The
Bank of New York.
Exchange Offer is expected to be commenced by the Issuers on or about [ ], 2004. The Letter of Transmittal accompanying the Prospectus (or in the
book-entry securities, the Automated Tender Offer Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used by the holders of the Outstanding Notes
to accept the Exchange Offer and contains instructions with respect to the delivery of certificates for Outstanding Notes tendered in connection therewith.
Exchange Offer shall expire at 5:00 p.m., New York City time, on [ ], 2004 or on such subsequent date or time to which the Issuers may extend
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set forth in the Prospectus, the Issuers expressly reserve the right to extend the Exchange Offer from time to time and may
extend the Exchange Offer by giving oral 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.
Issuers expressly reserve the right to amend or terminate the Exchange Offer, and not to accept for exchange any Outstanding 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 OfferConditions of the Exchange Offer."
carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith be discharged by the foregoing.
will establish a book-entry account with respect to the Outstanding 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 Outstanding Notes by causing the Book-Entry Transfer Facility to transfer such
the provisions of this Section 5, Outstanding Notes which the President, Senior Vice President, Executive Vice President, any Vice President Secretary or General Counsel of
either of the Issuers, or both, 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).
shall advise the Issuers with respect to any Outstanding Notes received subsequent to the Expiration Date and accept their instructions with respect to disposition of such
shall accept tenders:
cases where the Outstanding Notes are registered in two or more names only if signed by all named holders;
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
persons other than the registered holders of Outstanding Notes, provided that customary transfer requirements, including payment of any applicable transfer taxes, are fulfilled.
shall accept partial tenders of Outstanding Notes where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Outstanding Notes to the registrar for
split-up, and return any untendered Outstanding 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.
satisfaction or waiver of all of the conditions to the Exchange Offer, the Issuers will notify you (such notice, if given orally, to be promptly confirmed in writing) of their
acceptance, promptly after the Expiration Date, of all Outstanding Notes properly tendered and you, on behalf of the Issuers, will exchange such Outstanding Notes for New Notes and cause such
Outstanding Notes to be cancelled. Delivery of New Notes will be made on behalf of the Issuers by you at the rate of $1,000 principal amount of New Notes for each $1,000 principal amount of the
corresponding series of Outstanding Notes tendered promptly after notice (such notice if given orally, to be promptly confirmed in writing) of acceptance of said Outstanding Notes by the Issuers;
provided, however, that in all cases, Outstanding Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of certificates for such Outstanding 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 manually signed
facsimile thereof) with any required signature guarantees and any other required documents. You shall issue New Notes only in denominations of $1,000 or any integral multiple thereof.
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, Outstanding
Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
Issuers shall not be required to exchange any Outstanding Notes tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the
Issuers not to exchange any Outstanding Notes tendered shall be given (if given orally, to be promptly confirmed in writing) by the Issuers to you.
pursuant to the Exchange Offer, the Issuers do not accept for exchange all or part of the Outstanding Notes tendered because of an invalid tender, the occurrence of certain other
events set forth in the Prospectus under the caption "The Exchange OfferConditions 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 Outstanding Notes (or effect appropriate book-entry transfer), together with any related required documents and
the Letters of Transmittal relating thereto that are in your possession, to the holder (or such other person as may be designated in the Letter of Transmittal).
certificates for reissued Outstanding Notes, unaccepted Outstanding Notes or for New Notes shall be forwarded by first-class mail.
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
Exchange Agent hereunder you:
not be liable for any action or omission to act unless the same constitutes your own gross negligence, willful misconduct or bad faith, and in no event shall you be liable to a
Security holder, the Issuers or any third party for special, indirect or consequential damages, or lost profits, arising in connection with this Agreement;
have no duties or obligations other than those specifically set forth herein or as may be subsequently agreed to in writing between you and the Issuers;
be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates or the Outstanding Notes
represented thereby deposited with you pursuant to the Exchange Offer, and will
shall take such action as may from time to time be requested by the Issuers (and such other action as you may 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 Issuers, 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 Issuers will furnish you with copies of such documents on your request. All other requests for information relating to the Exchange Offer shall be directed to the Issuers,
Attention: Brett R. Chapman.
shall advise by facsimile transmission Brett R. Chapman, the General Counsel of the Issuers (at the facsimile number (310) 203-7747), and such other person or
persons as the Issuers may request, daily (and more frequently during the week immediately preceding the Expiration Date if requested) up to and including the Expiration Date, as to the number of
Outstanding Notes which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to 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 Issuers 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 they may reasonably request. Such cooperation shall include, without limitation, the granting by you to the Issuers and such
person or persons as the Issuers 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
Issuers shall have received information in sufficient detail to enable them to decide whether to extend the Exchange Offer. You shall
a final list of all persons whose tenders were accepted, the aggregate principal amount of Outstanding Notes tendered, the aggregate principal amount of Outstanding Notes accepted and deliver
said list to the Issuers.
of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to the date and, after the expiration of the Exchange Offer, 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 by returning them to the Issuers.
services rendered as Exchange Agent hereunder, you shall be entitled to such compensation as set forth on Schedule I attached hereto. The provisions of this section shall
survive the termination of this Agreement.
hereby acknowledge receipt of the Prospectus and the Letter of Transmittal. 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 your duties, liabilities and indemnification
as Exchange Agent.
Issuers covenant and agree to fully indemnify and hold you harmless against any and all loss, liability, cost or expense, including reasonable attorneys' fees and expenses,
incurred without gross negligence, bad faith or willful misconduct on your part, 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 believed by you to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Outstanding Notes 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 Outstanding Notes. In each
case, the Issuers shall be notified by you, by letter or facsimile transmission, 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 shall have been served with a summons in connection therewith. The Issuers shall be entitled to participate at their own expense in the defense of any such
claim or other action and, if the Issuers so elect, the Issuers shall assume the defense of any suit brought to enforce any such claim. In the event that the Issuers shall assume the defense of any
such suit, the Issuers shall not be liable for the fees and expenses of any additional counsel thereafter retained by you, so long as the Issuers shall retain counsel satisfactory to you to defend
such suit, and so long as you have not determined, in your reasonable judgment, that a conflict of interest exists between you and the Issuers. The provisions of this section shall survive the
termination of this Agreement.
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.
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 Outstanding Notes,
the Issuers' check in the amount of all transfer taxes so payable; provided, however, that you shall reimburse the Issuers 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.
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
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.
Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement.
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.
Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled 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.
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 telecopy number set forth below:
to the Issuers:
a copy to:
to the Exchange Agent:
acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
||Brett R. Chapman
as of the date first above written:
|THE BANK OF NEW YORK, as Exchange Agent
COMPENSATION OF EXCHANGE AGENT:
EXCHANGE AGENT AGREEMENT