|
Exhibit 99.5
EXCHANGE AGENT
AGREEMENT
THIS EXCHANGE AGENT AGREEMENT
(this “Agreement”) is made and entered into as of
,
2005, by and between R. R. Donnelley & Sons Company, a
Delaware corporation (the “Issuer”), and LaSalle Bank
National Association, a national banking association, as exchange
agent (the “Exchange Agent”).
RECITALS
The Issuer proposes to make
an offer to exchange, upon the terms and subject to the conditions
set forth in the Issuer’s Prospectus dated
,
2005 (the “Prospectus”) and the accompanying letters of
transmittal (the “Letter of Transmittal”), forms of
which are attached hereto as Exhibit A (for the 4.95% Notes
due 2010) and Exhibit B (for the 5.50% Notes due 2015) (and
which, together with the Prospectus, constitute the “Exchange
Offer”), $500,000,000 aggregate principal amount of its
outstanding, unregistered 4.95% Notes due 2010 (the “Old 2010
Notes”) for an equal principal amount of 4.95% Notes due 2010
(the “New 2010 Notes”) registered under the Securities
Act of 1933, as amended (the “Securities Act”) and
$500,000,000 aggregate principal amount of its outstanding,
unregistered 5.50% Notes due 2015 (and which, together with the Old
2010 Notes, the “Old Notes”) for an equal principal
amount of 5.50% Notes due 2015 (and which, together with the New
2010 Notes, the “New Notes”) registered under the
Securities Act.
The Exchange Offer will
commence as soon as practicable after the Issuer’s
Registration Statement on Form S-4 relating to the Exchange Offer
is declared effective under the Securities Act, as notified in
writing to the Exchange Agent by the Issuer (the “Effective
Time”) and shall terminate at 5:00 p.m., New York City time,
on
,
2006 (the “Expiration Date”), unless the Exchange Offer
is extended by the Issuer and the Issuer notifies the Exchange
Agent of such extension by 5:00 p.m., New York City time, on the
previous Expiration Date, in which case, the term “Expiration
Date” shall mean the latest date and time to which the
Exchange Offer is extended. In connection therewith, the
undersigned parties hereby agree as follows:
1. Appointment and Duties
as the Exchange Agent . The Issuer hereby authorizes LaSalle
Bank National Association, to act as the Exchange Agent in
connection with the Exchange Offer, and LaSalle Bank National
Association, hereby agrees to act as the Exchange Agent and to
perform the services outlined herein in connection with the
Exchange Offer on the terms and conditions contained
herein.
2. Mailing to Holders of
the Old Notes .
A. As soon as practicable
after its receipt of notification from the Issuer as to the
Effective Time, the Exchange Agent will mail to each registered
holder of the Old Notes (i) a Letter of Transmittal with
instructions (including instructions for completing a substitute
Form W-9), (ii) a copy of the Prospectus, and (iii) a
Notice of Guaranteed Delivery substantially in the form attached
hereto as Exhibit C (for the 4.95% Notes due 2010) or
Exhibit D (for the 5.50% Notes due 2015) (the “Notice
of Guaranteed Delivery”). Thereafter, the Exchange Agent
shall promptly mail such materials to any party requesting
them.
B. The Issuer shall supply
the Exchange Agent with sufficient copies of the
Prospectus, the Letters of Transmittal
and the Notices of Guaranteed Delivery to enable the Exchange Agent
to perform its duties hereunder.
3. ATOP Registration .
As soon as practicable, the Exchange Agent shall establish an
account with The Depositary Trust Company (“DTC”) in
its name to facilitate book-entry tenders of the Old Notes through
DTC’s Automated Tender Offer Program (“ATOP”) for
the Exchange Offer.
4. Receipt of Letters of
Transmittal and Related Items . From and after the Effective
Time, the Exchange Agent is hereby authorized and directed to
(i) accept the Letters of Transmittal, duly executed in
accordance with the instructions thereto (or a manually signed
facsimile thereof), and any requisite collateral documents from
holders of the Old Notes and (ii) surrender the Old Notes to
which such Letters of Transmittal relate. The Exchange Agent is
authorized to request from any person tendering the Old Notes such
additional documents as the Exchange Agent or the Issuer deems
appropriate. The Exchange Agent is hereby authorized and directed
to process withdrawals of tenders to the extent withdrawal thereof
is permitted by the Exchange Offer.
5. Defective or Deficient
Old Notes and Instruments .
A. As soon as practicable
after receipt, the Exchange Agent will examine instructions
transmitted by DTC (the “DTC Transmissions”), the Old
Notes, the Letters of Transmittal, the Notices of Guaranteed
Delivery and other documents received by the Exchange Agent in
connection with tenders of the Old Notes to ascertain whether
(i) the Letters of Transmittal are completed and executed in
accordance with the instructions set forth therein (or that the DTC
Transmissions contain the proper information required to be set
forth therein), (ii) the Old Notes have otherwise been
properly tendered in accordance with the Prospectus and the Letters
of Transmittal (or that book-entry confirmations are in due and
proper form and contain the information required to be set forth
therein) and (iii) if applicable, the other documents
(including the Notices of Guaranteed Delivery) are properly
completed and executed.
B. If any Letter of
Transmittal or other document has been improperly completed or
executed (or any DTC Transmissions are not in due and proper form
or omit required information) or the Old Notes accompanying such
Letter of Transmittal are not in proper form for transfer or have
been improperly tendered (or the book-entry confirmations are not
in due and proper form or omit required information) or if some
other irregularity in connection with any tender of any Old Notes
exists, the Exchange Agent shall promptly report such information
to the holder of such Old Notes. If such condition is not promptly
remedied by the holder, the Exchange Agent shall report such
condition to the Issuer and await the Issuer’s direction. All
questions as to the validity, form, eligibility (including
timeliness of receipt), acceptance and withdrawal of any Old Notes
tendered or delivered shall be determined by the Issuer, in its
sole discretion. Notwithstanding the above, the Exchange Agent
shall not incur any liability for failure to give such notification
unless such failure constitutes gross negligence, bad faith or
willful misconduct.
C. The Issuer reserves the
absolute right (i) to reject any or all tenders of any
particular Old Notes determined by the Issuer not to be properly
tendered or the acceptance or exchange of which may, in the opinion
of the Issuer or the Issuer’s counsel, be unlawful and
(ii)
-2-
to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the tender of any
particular Old Notes whether or not similar conditions or defect or
irregularity are waived in the case of other Old Notes. The
Issuer’s interpretation of the terms and conditions of the
Exchange Offer (including the Letters of Transmittal and the
Notices of Guaranteed Delivery and the instructions set forth
therein) will be final and binding.
6. Requirements of
Tenders .
A. Tenders of the Old Notes
shall be made only as set forth in the Letters of Transmittal, and
shall be considered properly tendered only when tendered in
accordance therewith. Notwithstanding the provisions of this
paragraph, any Old Notes that the Chief Executive Officer or Chief
Financial Officer of the Issuer shall approve as having been
properly tendered shall be considered to be properly
tendered.
B. The Exchange Agent shall
(a) ensure that each Letter of Transmittal and 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; (b) 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; and (c) 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.
7. Exchange of the Old
Notes .
A. Promptly after the
Expiration Date and authentication of the New Notes by the trustee,
the Issuer will deliver the New Notes to the Exchange Agent. Upon
surrender of the Old Notes properly tendered and acceptance thereof
by the Issuer in accordance with the Exchange Offer, the Exchange
Agent shall deliver or cause to be delivered the New Notes to the
holders of such surrendered and accepted Old Notes. The principal
amount of the New Notes to be delivered to a holder shall equal the
principal amount of the Old Notes surrendered by such holder and
accepted for exchange by the Issuer.
B. The New Notes issued in
exchange for certificated Old Notes shall be mailed by the Exchange
Agent, in accordance with the instructions contained in the Letters
of Transmittal, by first-class or registered mail, and under
coverage of the Exchange Agent’s blanket surety bond for
first-class or registered mail losses protecting the Issuer from
loss or liability arising out of the non-receipt or non-delivery of
such New Notes or the replacement thereof.
C. Notwithstanding any other
provision of this Agreement, issuance of the New Notes for accepted
Old Notes pursuant to the Exchange Offer shall be made only after
deposit with the Exchange Agent of the Old Notes, the related
Letter of Transmittal and any other required documents.
8. Notes Held in Trust
. The New Notes and any cash or other property (the
̶
| 
