APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the Trust hereby authorize and appoint The First National Bank of Chicago to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago will perform those services as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" and as are outlined herein. x. Xxxxxxx and the Trust acknowledge and agree that The First National Bank of Chicago has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent shall perform such duties in good faith. c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer. d. The Exchange Agent will examine each of the Letters of Transmittal and certificates for Old Securities and any other documents delivered or mailed to the Exchange Agent by or for Holders of the Old Securities, and any book-entry confirmations (as defined in the Prospectus) received by the Exchange Agent with respect to the Old Securities, 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 and that such book-entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Securities have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations are not in due and proper form or omit certain information, or any of the certificates for Old Securities are not in proper form for transfer or some other irregularity in connection with the tender of the Old Securities exists, the Exchange Agent will endeavor to advise the tendering Holders of the irregularity and to take any other action may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoing, the Exchange Agent shall not incur any liability for failure to give any such notification. e. With the approval of any Regular Trustee of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officer, the Exchange Agent is authorized to waive any irregularities in connection with any tender of Old Securities pursuant to the Exchange Offer. f. Tenders of Old Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Securities shall be considered properly tendered only when tendered in accordance with the procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities which any Regular Trustee or Designated Officer shall approve (such approval, if given orally, to be confirmed in writing) as having been properly tendered shall be considered to be properly tendered. g. The Exchange Agent shall advise Xxxxxxx and the Trust with respect to any Old Securities received after 5:00 p.m., New York City time, on the Expiration Date and accept their instructions with respect to disposition of such Old Securities. h. The Exchange Agent shall accept tenders: (a) in cases where the Old Securities 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 such person's authority so to act is submitted; and (c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx and the Trust 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. i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof. j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date. k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx or the Trust orally (and confirmed in writing) to the Exchange Agent. l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates. m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate. n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders. o. As Exchange Agent, The First National Bank of Chicago: (i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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; (iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties; (v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons; (vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer; (vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel; (viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and (ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request. p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust. q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust. r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter. s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 2 contracts
Samples: Exchange Agency Agreement (Barnett Capital Ii), Exchange Agency Agreement (Barnett Capital I)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the Trust (a) The Company hereby authorize and appoint authorizes The First National Bank of Chicago New York to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago New York agrees to act as Exchange Agent in connection with the Exchange Offer. As The Exchange Agent, The First National Bank of Chicago Agent will perform those services as are specifically set forth outlined herein, including, but not limited to, accepting tenders of the Old Notes, assisting the Company in the section preparation of the Prospectus captioned "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 the Exchange Offer" and as are outlined hereinAgent).
x. Xxxxxxx (b) The Company acknowledges and agrees that the Trust acknowledge and agree that The First National Bank of Chicago Exchange Agent has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent shall perform such duties as are outlined herein and which are specifically set forth in good faith.
c. the section of the Prospectus captioned "The Exchange Agent Offer" and in the Letter of Transmittal; provided, however, that in no way will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account duty to act in accordance with DTC's procedure for such transfergood faith and without gross negligence or willful misconduct be discharged by the foregoing.
d. (c) The Exchange Agent will examine each of the Letters of Transmittal (or electronic instructions transmitted by The Depository Trust Company (the "DTC Transmissions")) and certificates for the Old Securities Notes and any other documents delivered or mailed to the Exchange Agent by or for Holders holders of the Old Securities, and Notes (or any bookBook-entry confirmations Entry Confirmations (as defined set forth in the Prospectus) received by the Exchange Agent with respect to the Old SecuritiesNotes), 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 the DTC Transmission contains the proper information required to be set forth therein) and that such book(ii) the Old Notes have otherwise been properly tendered (or the Book-entry confirmations Entry Confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Securities have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding). In each case where the Letters of Transmittal or any other documents have been improperly completed or executed (or where book-entry confirmations the DTC Transmissions are not in due and proper form or omit certain information, ) or any of the certificates for the Old Securities 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 Securities Notes exists, the Exchange Agent will endeavor endeavor, subject to advise the terms and conditions of the Exchange Offer, to inform the tendering Holders holders of Old Notes of the irregularity and to take any other action as may be reasonably necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent 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.
e. (d) With the approval of the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company (such approval, if given orally, to be promptly confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent is authorized to waive any irregularities in connection with any tender of the Old Securities Notes pursuant to the Exchange Offer.
f. (e) Tenders of the Old Securities 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 Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, the Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. (f) The Exchange Agent shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such the Old SecuritiesNotes.
h. (g) The Exchange Agent shall accept tenders:
(ai) in cases where the Old Securities Notes are registered in two or more names only if signed by all named Holdersholders;
(bii) 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 such person's his or her authority so to act is submitted; and;
(ciii) from persons other than the registered Holder holder of Old Securities Notes, provided that customary transfer requirements, including payment of any applicable transfer taxes, are fulfilled; and
(iv) in cases where the Old Notes are tendered in part only when such Old Notes are tendered in principal amounts of $1,000 and integral multiples thereof. The Exchange Agent shall accept partial tenders of Old Securities Notes where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities Notes to the transfer agent registrar for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx and the Trust Notes to the Holder 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.
i. (h) Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust Company will notify the Exchange Agent (such notice notice, if given orally, to be promptly confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities Notes properly tendered and the Exchange Agent, on behalf of the TrustCompany, will exchange such Old Securities Notes for New Securities Notes and cause such Old Securities Notes to be canceledcancelled. Delivery of New Securities Notes will be made on behalf of the Trust Company by the Exchange Agent at the rate of $1,000 liquidation principal amount of New Notes for each $1,000 principal amount of the corresponding series of Old Securities Notes tendered promptly after notice (such notice if given orally, to be promptly confirmed in writing) of acceptance of said Old Securities Notes by the TrustCompany; provided, however, that in all cases, Old Securities Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities Notes (or confirmation of book-entry transfer into the Exchange Agent's account at DTCthe Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You The Exchange Agent shall issue New Securities Notes only in denominations of $1,000 or any integral multiple thereof.
j. (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 Securities Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. (j) Notice of any decision by Xxxxxxx and the Trust Company not to exchange any Old Securities Notes tendered shall be given by Xxxxxxx or the Trust Company either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange Agent.
l. (k) If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do Company does not accept for exchange all or part of the Old Securities Notes tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall 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 Securities Notes (or effect appropriate bookBook-entry transferEntry Confirmation), together with any related required documents and the Letters of Transmittal (or DTC Transmissions) relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agent Agreement (Focal Communications Corp)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Wilmington Trust to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Old Capital Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinOld Capital Securities.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Wilmington Trust shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent Wilmington Trust will establish an account with respect to the Old Capital Securities at The Depository Trust Company (the "DTCBook-Entry Transfer Facility") for the purposes of the Exchange Offer within two (2) business days after the date of the Prospectus, and any financial institution that is a participant in DTCthe Book-Entry Transfer Facility's system may make book-entry delivery of the Old Capital Securities by causing DTC the Book-Entry Transfer Facility to transfer such Old Capital Securities into the Exchange AgentWilmington Trust's account in accordance with DTCthe Book-Entry Transfer Facility's procedure for such transfer.
d. The Exchange Agent Wilmington Trust will examine each of the Letters of Transmittal and certificates for Old Capital Securities and any other documents delivered or mailed to the Exchange Agent Wilmington Trust by or for Holders of the Old Capital Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent Wilmington Trust with respect to the Old Capital Securities, to ascertain whether: (iI) the Letters of Transmittal and any such other documents are duly executed and properly completed in accordance with the instructions set forth therein and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Capital Securities have otherwise been properly tendered, (iii) Old Capital Securities are tendered in Liquidation Amounts of $1,000 (1 Capital Security) and integral multiples in excess thereof, and if any Old Capital Securities are tendered for exchange in part, the untendered liquidation amount thereof is $100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Capital Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or of where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Capital Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Capital Securities exists, Wilmington Trust will endeavor, upon request of the Exchange Agent will endeavor Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Wilmington 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.
e. With the approval of the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Wilmington Trust is authorized to waive any irregularities in connection with any tender of Old Capital Securities pursuant to the Exchange Offer.
f. Tenders of Old Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Capital Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Capital Securities which the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent Wilmington Trust shall advise Xxxxxxx the Company and the Trust with respect to any Old Capital Securities received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old Capital Securities.
h. The Exchange Agent Wilmington Trust shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Capital Securities tendered in part to the transfer agent for split-up and shall return any untendered Old Capital Securities or Old Capital Securities which have not been accepted by Xxxxxxx the Company and the Trust to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. Upon satisfaction or waiver acceptance by the Company and the Trust of all of the conditions any Old Capital Securities duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing) of its acceptance), promptly after the Expiration Date, of all Old Securities properly tendered Company and the Exchange Agent, Trust will cause New Capital Securities in exchange therefor to be issued as promptly as practicable and Wilmington Trust will deliver such New Capital Securities on behalf of the Trust, will exchange such Old Securities for New Securities Company and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount (1 Capital Security) Liquidation Amount of New Capital Securities for each $1,000 Liquidation Amount of Old Capital Securities tendered as promptly as practicable after acceptance by the Company and the Trust of the corresponding series of Old Capital Securities tendered promptly after for exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the Company and the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt . Unless otherwise instructed by the Exchange Agent of certificates for such Old Securities (Company or confirmation of book-entry transfer into the Exchange Agent's account at DTC)Trust, a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You Wilmington Trust shall issue New Capital Securities only in denominations of $1,000 (1 Capital Security) or any integral multiple of $1,000 in excess thereof.
j. 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, Old Capital Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Capital Securities tendered shall be given by Xxxxxxx or the Company and the Trust either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentWilmington Trust.
l. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Capital Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer -- Conditions to the Exchange Offer" or otherwise, Wilmington Trust shall, upon notice from the Exchange Agent shall Company and the Trust (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 Capital Securities (or effect appropriate book-book- entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange AgentWilmington Trust's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Capital Securities, unaccepted Old Capital Securities or New Capital Securities shall be forwarded by (a) first-first- class certified mail, return receipt requested under a blanket surety bond obtained by Wilmington Trust protecting Wilmington Trust, the Exchange Agent protecting the Exchange Agent, Xxxxxxx Company and the Trust from loss or liability arising out of the non-receipt or non-delivery or of such certificates or (b) by registered mail insured by the Exchange Agent Wilmington Trust separately for the replacement value of each such certificate.
n. The Exchange Agent Wilmington 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 persons nominee or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the (a) The Company hereby authorizes Xxxxxx Trust hereby authorize and appoint The First National Bank of Chicago to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Xxxxxx Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Xxxxxx Trust will perform those services as are specifically set forth 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 section preparation of the Prospectus captioned "The Exchange Offer" and as are outlined hereindocumentation 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 Xxxxxx Trust).
x. Xxxxxxx (b) The Company acknowledges and the agrees that Xxxxxx Trust acknowledge and agree that The First National Bank of Chicago has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Xxxxxx 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 xxxx Xxxxxx Trust's general duty to act in good faithfaith and without gross negligence or willful misconduct be discharged by the foregoing.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository (c) Xxxxxx Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal (or electronic instructions transmitted by The Depository Trust Company (the "DTC Transmissions") and certificates for the Old Securities Notes and any other documents delivered or mailed to the Exchange Agent Xxxxxx Trust by or for Holders holders of the Old Securities, and Notes (or any bookBook-entry confirmations Entry Confirmations (as defined set forth in the Prospectus) received by the Exchange Agent Xxxxxx Trust with respect to the Old SecuritiesNotes), 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 such book-entry confirmations the Book- Entry Confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Securities have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding). In each case where the Letters of Transmittal or any other documents have been improperly completed or executed (or where book-entry confirmations the DTC Transmissions are not in due and proper form or omit certain information, ) or any of the certificates for the Old Securities 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 Securities Notes exists, Xxxxxx Trust will endeavor, subject to the terms and conditions of the Exchange Agent will endeavor Offer, to advise the tendering Holders holders of Old Notes of the irregularity and to take any other action as may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Xxxxxx 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.
e. (d) With the approval of the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Xxxxxx Trust is authorized to waive any irregularities in connection with any tender of the Old Securities Notes pursuant to the Exchange Offer.
f. (e) Tenders of the Old Securities 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 Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, the Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent (f) Xxxxxx Trust shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such the Old SecuritiesNotes.
h. The (g) Xxxxxx Trust shall (i) ensure that each Letter of Transmittal and, if required pursuant to the terms of the Exchange Agent shall accept tenders:
Offer, the related Old Notes or a bond power are duly executed (awith signatures guaranteed where required) by the appropriate parties in accordance with the terms of the Exchange Offer; (ii) in cases those instances where the Old Securities are registered in two or more names only if signed by all named Holders;
(b) in cases where person executing the signing person Letter of Transmittal (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when capacity, ensure that proper evidence of such person's his or her authority so as to act is submitted; and(iii) in those
(civ) from persons other than ensure that the registered Holder Old Notes tendered in part are tendered in principal amounts of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated $1,000 and as permitted in the Letter of Transmittal integral multiples thereof; and (v) deliver certificates for the Old Securities Notes tendered in part to the transfer agent for split-up and shall return any untendered Old Securities Notes or Old Securities Notes which have not been accepted by Xxxxxxx and the Trust Company to the Holder holders of such Old Notes (or such other person as may be designated in the Letter case of TransmittalOld Notes tendered by book- entry transfer, such non-exchanged Old Notes will be credited to an account maintained with the Book-Entry Transfer Facility) as promptly as practicable after the expiration or termination of the Exchange Offer.
i. (h) Upon satisfaction or waiver acceptance by the Company of all of the conditions any Old Notes duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing), Xxxxxx 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) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, Xxxxxx Trust will deliver such New Notes on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent Company at the rate of $1,000 liquidation principal amount of New Notes for each $1,000 principal amount of the corresponding series Old Notes tendered as promptly as possible after acceptance by the Company of the Old Securities tendered promptly after Notes in exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the TrustCompany; provided, however, that in all cases, the Old Securities Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent Xxxxxx Trust of certificates for such Old Securities Notes (or confirmation of book-entry transfer into the Exchange Agent's account at DTCa Book- Entry Confirmation), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documentsdocuments (or a properly completed DTC Transmission). You Unless otherwise instructed by the Company, Xxxxxx Trust shall issue the New Securities Notes only in denominations of $1,000 or any integral multiple thereof.
j. Tenders (i) Tendered 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 Securities Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. (j) Notice of any decision by Xxxxxxx and the Trust Company not to exchange any Old Securities Notes tendered shall be given by Xxxxxxx or the Trust Company either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentXxxxxx Trust.
l. (k) If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do Company does not accept for exchange all or part of the Old Securities Notes tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, Xxxxxx Trust shall, upon notice from the Exchange Agent shall 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 Securities Notes (or effect appropriate bookBook-entry transferEntry Confirmation), together with any related required documents and the Letters of Transmittal (or DTC Transmissions) relating thereto that are in the Exchange AgentXxxxxx Trust's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agent Agreement (Focal Communications Corp)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the Trust a. The Company hereby authorize and appoint The First National Bank of Chicago authorizes Chase to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Chase agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Chase will perform those services as are specifically set forth 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 Old Notes, assisting the Company in the section preparation of the Prospectus captioned "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 Chase) and communicating generally regarding the Exchange Offer" Offer with brokers, dealers, commercial banks, trust companies and as are outlined hereinother persons, including Holders of the Old Notes.
x. Xxxxxxx b. The Company acknowledges and the Trust acknowledge and agree agrees that The First National Bank of Chicago Chase has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Chase 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 Chase's general duty to act in good faithfaith and without gross negligence or willful misconduct be discharged by the foregoing.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent x. Xxxxx will examine each of the Letters of Transmittal and certificates for Old Securities Notes and any other documents delivered or mailed to the Exchange Agent Chase by or for Holders of the Old SecuritiesNotes, and any book-entry confirmations (as defined in the Prospectussection of the Prospectus captioned "The Exchange Offer--Acceptance For Exchange and Issuance of New Notes") received by the Exchange Agent Chase with respect to the Old SecuritiesNotes, 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 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 Old Securities Notes have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations are not in due and proper form or omit certain information, or any of the certificates for Old Securities Notes are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Securities Notes exists, Chase will endeavor, subject to the terms and conditions of the Exchange Agent will endeavor Offer, to advise the tendering Holders of the irregularity, and if such irregularity is not corrected, to advise the Company of the same, and to take any other action as may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Chase 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.
e. d. With the approval of the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Chase is authorized to waive any irregularities in connection with any tender of Old Securities Notes pursuant to the Exchange Offer.
f. e. Tenders of Old Securities 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 Old Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of the Company, shall approve (such approval, if given orally, to be confirmed in writingwriting in an Officers' Certificate) as having been properly tendered shall be considered to be properly tendered.
g. The Exchange Agent x. Xxxxx shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date June 11, 1997 and accept their its instructions with respect to disposition of such Old SecuritiesNotes.
h. The Exchange Agent x. Xxxxx shall accept tenders:
ensure (ai) that Old Notes tendered in cases where part are tendered in principal amounts of $1,000 and integral multiples thereof and that if any Old Notes are tendered or exchange in part, the Old Securities are registered untendered principal amount thereof is $100,000 or any integral multiple of $1,000 in two or more names only if signed by all named Holders;
excess thereof; and (bii) 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent Chase shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities Notes tendered in part to the transfer agent for split-up and shall return any untendered Old Securities Notes or Old Securities Notes which have not been accepted by Xxxxxxx and the Trust Company to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. h. Upon satisfaction or waiver acceptance by the Company of all of the conditions any Old Notes duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such acceptance, if given orally, to be confirmed in writing), Chase will cause 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 Chase 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 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 its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust acceptance by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the TrustCompany; provided, however, that in all cases, Old Securities Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent Chase of certificates for such Old Securities Notes (or confirmation of a book-entry transfer into the Exchange Agent's account at DTCconfirmation), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You Chase shall issue New Securities Notes only in denominations of $1,000 or any integral multiple thereofthereof unless otherwise instructed by the Company in writing.
j. 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, Old Securities Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. j. Notice of any decision by Xxxxxxx and the Trust Company not to exchange any Old Securities Notes tendered shall be given by Xxxxxxx or the Trust Company either orally (and if given orally, to be confirmed in writing) to the Exchange Agentor in a written notice.
l. k. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do Company does not accept for exchange all or part of the Old Securities Notes tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, Chase shall, upon notice from the Exchange Agent shall Company (such notice if given orally, to be confirmed in writing), promptly after the expiration or termination of the Exchange Offer return such certificates certificate for unaccepted Old Securities Notes (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange AgentChase's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent x. Xxxxx 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 persons nominee or to engage or use any person to solicit tenders.
o. m. As Exchange Agent, The First National Bank of ChicagoChase:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," Prospectus, the Letter of Transmittal or herein or as may be subsequently agreed to in writingwriting by Chase and the Company;
(ii) will make no representations and will have no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates for the Old Securities Notes deposited pursuant to the Exchange Offer, 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 way will Chase'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 the Exchange AgentChase's reasonable judgment involve any expense or liability, unless the Exchange Agent Chase shall have been furnished with reasonable indemnityindemnity from the Company satisfactory to Chase;
(iv) may reasonably rely on and shall be fully authorized and protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telegram telegram, facsimile or other document or security delivered to the Exchange Agent Chase and reasonably believed by the Exchange Agent Chase 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 the Exchange Agent Chase believes in good faith to be genuine and to have been signed or represented by a proper person or personspersons 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 Chase) and Chase 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 Regular Trustee Senior Vice President, any Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer or Designated Officerany other designated officer of the Company;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange AgentChase's duties and responsibilities and the advice 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 the Exchange Agent Chase hereunder in good faith and in accordance with the advice or written opinion of such counsel;; and
(viii) shall not advise any person tendering Old Securities Notes pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities Notes or as to the market value, decline or appreciation in market value of any Old Securities Notes that may or may not occur as a result of the Exchange Offer or as to the market value of the New Securities; and
(ix) The Exchange Agent Notes. Chase shall take such action as may from time to time be requested by Xxxxxxx or the Trust Company (and such other action as Chase 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 Xxxxxxx and the TrustCompany, 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 tendering into (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust The Company will furnish you with copies of such documents at your request.
p. The Exchange Agent x. Xxxxx shall advise by facsimile transmission or telephone orally and promptly thereafter confirm in writing to Xxxxxxx and the Trust Company and such other person or persons as Xxxxxxx and the Trust 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 liquidation principal amount of Old Securities Notes which have been duly tendered pursuant to and in compliance with the terms of the Exchange Offer and the items received by the Exchange Agent Chase pursuant to the Exchange Offer and this Agreement, separately reporting separately and cumulatively giving cumulative totals as to items properly received and items improperly received. In addition, the Exchange Agent Chase will also provide, and cooperate in making available to Xxxxxxx and the Trust Company, or any such other person or persons as requested upon request (such request if made orally, to be confirmed in writing) made from time to time, such other information in its possession as Xxxxxxx and the Trust Company may reasonably request. Such cooperation shall include, without limitation, the granting by Chase to the Exchange Agent to Xxxxxxx and the TrustCompany, and such person or persons as Xxxxxxx and the Trust Company may request, of access to those persons on the Exchange AgentChase's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust Company shall have received adequate information in sufficient detail to enable Xxxxxxx and the Trust Company to decide whether to extend the Exchange Offer. The Exchange Agent Chase shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation principal amount of Old Securities tendered and Notes tendered, the aggregate liquidation principal amount of Old Securities Notes accepted and deliver said list to Xxxxxxx and the TrustCompany.
q. o. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent Chase as to the date and the time of receipt thereof and shall be preserved by the Exchange Agent Chase for a period of time at least equal to the period of time the Exchange Agent Chase preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by Chase to the Exchange Agent to Xxxxxxx and the TrustCompany. The Exchange Agent Chase shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the TrustCompany.
r. The Exchange Agent x. Xxxxx hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent Chase may have with respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx the Company, or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matterChase.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Wilmington Trust to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Series A Capital Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinSeries A Capital Securities.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Wilmington Trust shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Wilmington Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal and certificates for Old Series A Capital Securities and any other documents delivered or mailed to the Exchange Agent Wilmington Trust by or for Holders of the Old Series A Capital Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent Wilmington Trust with respect to the Old Series A Capital Securities, 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 and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Series A Capital Securities have otherwise been properly tendered, (iii) Series A Capital Securities tendered in part are tendered in liquidation amounts of $1,000 per Capital Security and that if any Series A Capital Securities are tendered for exchange in part, the untendered liquidation amount thereof is $1,000, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Series A Capital Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or of where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Series A Capital Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Series A Capital Securities exists, Wilmington Trust will endeavor, upon request of the Exchange Agent will endeavor Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Wilmington 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.
e. d. With the approval of the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Wilmington Trust is authorized to waive any irregularities in connection with any tender of Old Series A Capital Securities pursuant to the Exchange Offer.
f. e. Tenders of Old Series A Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Series A Capital Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Series A Capital Securities which the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent f. Wilmington Trust shall advise Xxxxxxx the Company and the Trust with respect to any Old Securities received after 5:00 p.m., New York City time, on the Expiration Date and accept their instructions with respect to disposition of such Old Securities.
h. The Exchange Agent shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx and the Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx or the Trust orally (and confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.Series
Appears in 1 contract
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx 1.1. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Wilmington Trust to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Original Capital Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinOriginal Capital Securities.
x. Xxxxxxx 1.2. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Wilmington Trust shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The 1.3. Exchange Agent will examine each of the Letters of Transmittal and certificates for Old Original Capital Securities and any other documents delivered or mailed to the Exchange Agent by or for Holders of the Old Original Capital Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent with respect to the Old Original Capital Securities, 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 and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Original Capital Securities have otherwise been properly tendered, (iii) Original Capital Securities tendered in part are tendered in Liquidation Amounts of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess thereof and that if any Original Capital Securities are tendered for exchange in part, the untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Original Capital Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or of where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Original Capital Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Original Capital Securities exists, the Exchange Agent will endeavor endeavor, upon request of the Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent 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.
e. 1.4. With the approval of the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent is authorized to waive any irregularities in connection with any tender of Old Original Capital Securities pursuant to the Exchange Offer.
f. 1.5. Tenders of Old Original Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Original Capital Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Original Capital Securities which the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The 1.6. Exchange Agent shall advise Xxxxxxx the Company and the Trust with respect to any Old Original Capital Securities received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old Original Capital Securities.
h. The 1.7. Exchange Agent shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Original Capital Securities tendered in part to the transfer agent Exchange Agent for split-up and shall return any untendered Old Original Capital Securities or Old Original Capital Securities which have not been accepted by Xxxxxxx the Company and the Trust to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. 1.8. Upon satisfaction or waiver acceptance by the Company and the Trust of all of the conditions any Original Capital Securities duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing) of its acceptance), promptly after the Expiration Date, of all Old Securities properly tendered Company and the Trust will cause Exchange Agent, Capital Securities in exchange therefor to be issued as promptly as practicable and Exchange Agent will deliver such Exchange Capital Securities on behalf of the Trust, will exchange such Old Securities for New Securities Company and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount 100,000 (100 Capital Securities) Liquidation Amount of Exchange Capital Securities for each $100,000 Liquidation Amount of Original Capital Securities tendered as promptly as practicable after acceptance by the Company and the Trust of the corresponding series of Old Original Capital Securities tendered promptly after for exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the Company and the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt . Unless otherwise instructed by the Company or the Trust, Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Exchange Capital Securities only in denominations of $1,000 100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof.
j. 1.9. 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, Old Original Capital Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met1.10. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Original Capital Securities tendered shall be given by Xxxxxxx or the Company and the Trust either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange Agent.
l. 1.11. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Original Capital Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer -- Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall shall, upon notice from the Company and the Trust (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 Original Capital Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. 1.12. Certificates for reissued Old Original Capital Securities, unaccepted Old Original Capital Securities or New Exchange Capital Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting Wilmington Trust, the Exchange Agent, Xxxxxxx Company and the Trust from loss or liability arising out of the non-receipt or non-delivery or of such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The 1.13. Exchange Agent 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 persons nominee or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the Trust a. The Company hereby authorize and appoint The authorizes First National Bank of Chicago to act as Exchange Agent exchange agent in connection with the Exchange Offer exchange offer and The First National Bank of Chicago agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago will perform those services as are specifically set forth 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 Old Notes, assisting the Company in the section preparation of the Prospectus captioned "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 First Chicago) and communicating generally regarding the Exchange Offer" Offer with brokers, dealers, commercial banks, trust companies and as are outlined hereinother persons, including Holders of the Old Notes.
x. Xxxxxxx b. The Company acknowledges and the Trust acknowledge and agree agrees that The First National Bank of Chicago has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent First Chicago 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 First Chicago's general duty to act in good faithfaith and without gross negligence or willful misconduct be discharged by the foregoing.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent First Chicago will examine each of the Letters of Transmittal and certificates for Old Securities Notes and any other documents delivered or mailed to the Exchange Agent First Chicago by or for Holders of the Old SecuritiesNotes, and any book-entry confirmations conformations (as defined in the Prospectus) received by the Exchange Agent First Chicago with respect to the Old SecuritiesNotes, 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 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 Old Securities Notes have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations are not in due and proper form or omit certain information, or any of the certificates for Old Securities Notes are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Securities Notes exists, First Chicago will endeavor, subject to the terms and conditions of the Exchange Agent will endeavor Offer, to advise the tendering Holders of the irregularity and to take any other action as may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent First Chicago 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.
e. d. With the approval of the President, any Regular Trustee Senior Vice President or any Vice President of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent First Chicago is authorized to waive any irregularities in connection with any tender of Old Securities Notes pursuant to the Exchange Offer.
f. e. Tenders of Old Securities 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 Old Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Vice President or Designated Officer any other designated officer of 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.
g. The Exchange Agent f. First Chicago shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old SecuritiesNotes.
h. The g. First Chicago shall ensure (i) that each Letter of Transmittal and, if required pursuant to the terms of the Exchange Agent shall accept tenders:
Offer, the related Old Notes or a bond power are duly executed (awith signatures guaranteed where required) by the appropriate parties in accordance with the terms of the Exchange Offer; (ii) in cases those instances where the Old Securities are registered in two or more names only if signed by all named Holders;
(b) in cases where person executing the signing person Letter of Transmittal (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when capacity, proper evidence of such person's his or her authority so to act is submitted; and
(ciii) from in those instances where Old Notes are tendered by persons other than the registered Holder holder of such Old Securities provided Notes, 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. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx and the Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx or the Trust orally (and confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the (a) The Company hereby authorizes Xxxxxx Trust hereby authorize and appoint The First National Bank of Chicago to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Xxxxxx Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Xxxxxx Trust will perform those services as are specifically set forth 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 section preparation of the Prospectus captioned "The Exchange Offer" and as are outlined hereindocumentation 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 Xxxxxx Trust).
x. Xxxxxxx (b) The Company acknowledges and the agrees that Xxxxxx Trust acknowledge and agree that The First National Bank of Chicago has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Xxxxxx 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 xxxx Xxxxxx Trust's general duty to act in good faithfaith and without gross negligence or willful misconduct be discharged by the foregoing.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository (c) Xxxxxx Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent 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 Securities Notes and any other documents delivered or mailed to the Exchange Agent Xxxxxx Trust by or for Holders holders of the Old Securities, and Notes (or any bookBook-entry confirmations Entry Confirmations (as defined set forth in the Prospectus) received by the Exchange Agent Xxxxxx Trust with respect to the Old SecuritiesNotes), 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 such book-entry confirmations the Book- Entry Confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Securities have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding). In each case where the Letters of Transmittal or any other documents have been improperly completed or executed (or where book-entry confirmations the DTC Transmissions are not in due and proper form or omit certain information, ) or any of the certificates for the Old Securities 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 Securities Notes exists, Xxxxxx Trust will endeavor, subject to the terms and conditions of the Exchange Agent will endeavor Offer, to advise the tendering Holders holders of Old Notes of the irregularity and to take any other action as may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Xxxxxx 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.
e. (d) With the approval of the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Xxxxxx Trust is authorized to waive any irregularities in connection with any tender of the Old Securities Notes pursuant to the Exchange Offer.
f. (e) Tenders of the Old Securities 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 Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, the Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent (f) Xxxxxx Trust shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such the Old SecuritiesNotes.
h. The (g) Xxxxxx Trust shall (i) ensure that each Letter of Transmittal and, if required pursuant to the terms of the Exchange Agent shall accept tenders:
Offer, the related Old Notes or a bond power are duly executed (awith signatures guaranteed where required) by the appropriate parties in accordance with the terms of the Exchange Offer; (ii) in cases those instances where the Old Securities are registered in two or more names only if signed by all named Holders;
(b) in cases where person executing the signing person Letter of Transmittal (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when capacity, ensure that proper evidence of such person's his or her authority so as to act is submitted; and
(ciii) from in those instances where the Old Notes are tendered by persons other than the registered Holder holder of such Old Securities provided Notes, ensure that the 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 certification, legal opinions or other information) are fulfilled. The Exchange Agent shall accept partial tenders ;
(iv) ensure that the Old Notes tendered in part are tendered in principal amounts of Old Securities where so indicated $1,000 and as permitted in the Letter of Transmittal integral multiples thereof; and (v) deliver certificates for the Old Securities Notes tendered in part to the transfer agent for split-up and shall return any untendered Old Securities Notes or Old Securities Notes which have not been accepted by Xxxxxxx and the Trust Company to the Holder holders of such Old Notes (or such other person as may be designated in the Letter case of TransmittalOld Notes tendered by book-entry transfer, such non-exchanged Old Notes will be credited to an account maintained with the Book-Entry Transfer Facility) as promptly as practicable after the expiration or termination of the Exchange Offer.
i. (h) Upon satisfaction or waiver acceptance by the Company of all of the conditions any Old Notes duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing), Xxxxxx 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) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, Xxxxxx Trust will deliver such New Notes on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent Company at the rate of $1,000 liquidation principal amount of New Notes for each $1,000 principal amount of the corresponding series Old Notes tendered as promptly as possible after acceptance by the Company of the Old Securities tendered promptly after Notes in exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the TrustCompany; provided, however, that in all cases, the Old Securities Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent Xxxxxx Trust of certificates for such Old Securities Notes (or confirmation of book-entry transfer into the Exchange Agent's account at DTCa Book- Entry Confirmation), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documentsdocuments (or a properly completed DTC Transmission). You Unless otherwise instructed by the Company, Xxxxxx Trust shall issue the New Securities Notes only in denominations of $1,000 or any integral multiple thereof.
j. Tenders (i) Tendered 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 Securities Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. (j) Notice of any decision by Xxxxxxx and the Trust Company not to exchange any Old Securities Notes tendered shall be given by Xxxxxxx or the Trust Company either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentXxxxxx Trust.
l. (k) If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do Company does not accept for exchange all or part of the Old Securities Notes tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer - Certain Conditions to the Exchange Offer" or otherwise, Xxxxxx Trust shall, upon notice from the Exchange Agent shall 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 Securities Notes (or effect appropriate bookBook-entry transferEntry Confirmation), together with any related required documents and the Letters of Transmittal (or DTC Transmissions) relating thereto that are in the Exchange AgentXxxxxx Trust's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agent Agreement (Focal Communications Corp)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx and the Trust a. The Company hereby authorize and appoint The First National Bank of Chicago authorizes FBNA to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago FBNA agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago FBNA will perform those services as are specifically set forth 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 Old Notes, assisting the Company in the section preparation of the Prospectus captioned "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 FBNA) and communicating generally regarding the Exchange Offer" Offer with brokers, dealers, commercial banks, trust companies and as are outlined hereinother persons, including Holders of the Old Notes.
x. Xxxxxxx b. The Company acknowledges and the Trust acknowledge and agree agrees that The First National Bank of Chicago FBNA has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent FBNA 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 FBNA's general duty to act in good faithfaith and without gross negligence or willful misconduct be discharged by the foregoing.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent FBNA will examine each of the Letters of Transmittal and certificates for Old Securities Notes and any other documents delivered or mailed to the Exchange Agent FBNA by or for Holders of the Old SecuritiesNotes, and any book-entry confirmations conformations (as defined in the Prospectus) received by the Exchange Agent FBNA with respect to the Old SecuritiesNotes, 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 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 Old Securities Notes have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations are not in due and proper form or omit certain information, or any of the certificates for Old Securities Notes are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Securities Notes exists, FBNA will endeavor, subject to the terms and conditions of the Exchange Agent will endeavor Offer, to advise the tendering Holders of the irregularity and to take any other action as may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent FBNA 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.
e. d. With the approval of the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent FBNA is authorized to waive any irregularities in connection with any tender of Old Securities Notes pursuant to the Exchange Offer.
f. e. Tenders of Old Securities 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 Old Securities Notes shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities Notes which the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent f. FBNA shall advise Xxxxxxx and the Trust Company with respect to any Old Securities Notes received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old SecuritiesNotes.
h. The g. FBNA shall ensure (i) that each Letter of Transmittal and, if required pursuant to the terms of the Exchange Agent shall accept tenders:
Offer, the related Old Notes or a bond power are duly executed (awith signatures guaranteed where required) by the appropriate parties in accordance with the terms of the Exchange Offer; (ii) in cases those instances where the Old Securities are registered in two or more names only if signed by all named Holders;
(b) in cases where person executing the signing person Letter of Transmittal (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when capacity, proper evidence of such person's his or her authority so to act is submitted; and
(ciii) from in those instances where Old Notes are tendered by persons other than the registered Holder holder of such Old Securities provided Notes, 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. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx and the Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx or the Trust orally (and confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (Fingerhut Companies Inc)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Corporation and the Trust hereby authorize and appoint The First National Bank of Chicago to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Old Capital Securities and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinOld Capital Securities.
x. Xxxxxxx b. The Corporation and the Trust acknowledge and agree that The First National Bank of Chicago has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent capacity Bank of Chicago shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes Bank of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent Chicago will examine each of the Letters of Transmittal and certificates for Old Capital Securities and any other documents delivered or mailed to the Exchange Agent Bank of Chicago by or for Holders of the Old Capital Securities, and any bookBook-entry confirmations Entry Confirmations (as defined in the Prospectus) received by the Exchange Agent Bank of Chicago with respect to the Old Capital Securities, 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 and that such bookBook-entry confirmations Entry Confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Capital Securities have otherwise been properly tendered, (iii) Old Capital Securities tendered in part are tendered in Liquidation Amounts of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess thereof and that if any Old Capital Securities are tendered for exchange in part, the untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof, and (iiiiv) Holders have provided their correct Tax Identification Number or and required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Capital Securities shall be made by Xxxxxxx the Corporation or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have document has been improperly completed or executed or where booka Book-entry confirmations are Entry Confirmation is not in due and proper form or omit omits certain information, or any of the certificates certificate for Old Capital Securities are is not in proper form for transfer or some other irregularity or deficiency in connection with the tender or acceptance of the Old Capital Securities exists, the Exchange Agent Bank of Chicago will endeavor to advise the tendering Holders Holder of Old Capital Securities of the irregularity or the deficiency in the tender and to take any other action as the Corporation or the Trust may be necessary or advisable as request to cause such irregularity or deficiency to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Bank of Chicago shall not be under any duty to give any notification of any irregularities or deficiency in tenders or incur any liability for failure to give any such notification.
e. d. With the approval of the President, any Regular Trustee Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Corporation (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officer), the Exchange Agent Bank of Chicago is authorized to waive any irregularities or other deficiency in connection with any tender of Old Capital Securities pursuant to the Exchange Offer.
f. e. Tenders of Old Capital Securities may be made only as set forth in the Letter Letters of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Capital Securities shall be considered properly tendered only when tendered in accordance with the procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities which any Regular Trustee or Designated Officer shall approve (such approval, if given orally, to be confirmed in writing) as having been properly tendered shall be considered to be properly tendered.
g. The Exchange Agent f. Bank of Chicago shall advise Xxxxxxx the Corporation and the Trust with respect to any of the aggregate Liquidation Amount of Old Capital Securities received by it as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their the Corporation's or the Trust's instructions with respect to the disposition of such Old Capital Securities.
h. The Exchange Agent g. Bank of Chicago shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Capital Securities tendered in part to the transfer agent for split-up and shall return any untendered Old Capital Securities or and all Old Capital Securities which have not been accepted by Xxxxxxx the Corporation and the Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx or the Trust orally (and confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall Holders thereof promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificatesOffer.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent 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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust and such other persons as Xxxxxxx and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as Xxxxxxx and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx and the Trust shall have received information in sufficient detail to enable Xxxxxxx and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (NGC Corp Capital Trust I)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Wilmington Trust to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Preferred Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinPreferred Securities.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Wilmington Trust shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Wilmington Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal and certificates for Old the Preferred Securities and any other documents delivered or mailed to the Exchange Agent Wilmington Trust by or for Holders of the Old Preferred Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent Wilmington Trust with respect to the Old Preferred Securities, 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 and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Preferred Securities have otherwise been properly tendered, (iii) the Preferred Securities tendered in part are tendered in liquidation amounts of $100,000 (100 Preferred Securities) and integral multiples of $1,000 in excess thereof and that if any Preferred Securities are tendered for exchange in part, the untendered liquidation amount thereof is $100,000 (100 Preferred Securities) or any integral multiple of $1,000 in excess thereof, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Preferred Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Preferred Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Preferred Securities exists, Wilmington Trust will endeavor, upon request of the Exchange Agent will endeavor Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Wilmington 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.
e. With the approval of any Regular Trustee of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officer, the Exchange Agent is authorized to waive any irregularities in connection with any tender of Old Securities pursuant to the Exchange Offer.
f. d. Tenders of Old Preferred Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Preferred Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Preferred Securities which the Trust and the Chairman of the Board, Chief Executive Officer, President, any Regular Trustee Vice President, the Treasurer or Designated Officer the Secretary of 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.
g. The Exchange Agent e. Wilmington Trust shall advise Xxxxxxx the Company and the Trust with respect to any Old Preferred Securities received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old Preferred Securities.
h. The Exchange Agent f. Wilmington Trust shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Preferred Securities tendered in part to the transfer agent for split-up and shall return any untendered Old Preferred Securities or Old Preferred Securities which have not been accepted by Xxxxxxx the Company and the Trust to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. g. Upon satisfaction or waiver acceptance by the Company and the Trust of all of the conditions any Preferred Securities duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing) of its acceptance), promptly after the Expiration Date, of all Old Securities properly tendered Company and the Trust will cause Exchange Agent, Preferred Securities in exchange therefor to be issued as promptly as practicable and Wilmington Trust will deliver such Exchange Preferred Securities on behalf of the Trust, will exchange such Old Securities for New Securities Company and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 100,000 (100 Preferred Securities) liquidation amount of the corresponding series Exchange Preferred Securities for each $100,000 liquidation amount of Old Preferred Securities tendered as promptly as practicable after acceptance by the Company and the Trust of the Preferred Securities for exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the Company and the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt . Unless otherwise instructed by the Exchange Agent of certificates for such Old Securities (Company or confirmation of book-entry transfer into the Exchange Agent's account at DTC)Trust, a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You Wilmington Trust shall issue New Exchange Preferred Securities only in denominations of $1,000 100,000 (100 Preferred Securities) or any integral multiple of $1,000 in excess thereof.
j. h. 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, Old Preferred Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. i. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Preferred Securities tendered shall be given by Xxxxxxx or the Company and the Trust either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentWilmington Trust.
l. j. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Preferred Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer -- Conditions to the Exchange Offer" or otherwise, Wilmington Trust, upon notice from the Exchange Agent shall Company and the Trust (such notice if given orally, to be confirmed in writing), promptly after the expiration or termination of the Exchange Offer Offer, shall return such certificates for unaccepted Old Preferred Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange AgentWilmington Trust's possession, to the persons who deposited such certificates.
m. k. Certificates for reissued Old Preferred Securities, unaccepted Old Preferred Securities or New Exchange Preferred Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by Wilmington Trust protecting Wilmington Trust, the Exchange Agent protecting the Exchange Agent, Xxxxxxx Company and the Trust from loss or liability arising out of the non-receipt or non-delivery or of such certificates or (b) by registered mail insured by the Exchange Agent Wilmington Trust separately for the replacement value of each such certificate.
n. The Exchange Agent l. Wilmington 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 persons nominee or to engage or use any person to solicit tenders.
o. m. As Exchange Agent, The First National Bank of ChicagoWilmington Trust:
(i) shall have no duties or obligations other than those specifically set forth herein or in the section of Prospectus or in the Prospectus captioned "The Exchange Offer," the related Letter of Transmittal or herein or as may be subsequently agreed to in writingTransmittal;
(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 Preferred Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange AgentWilmington Trust's reasonable judgment involve any expense or liability, unless the Exchange Agent Wilmington Trust shall have been furnished with reasonable indemnityindemnity satisfactory to it and additional fees for taking of such action;
(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 the Exchange Agent Wilmington Trust and reasonably believed by the Exchange Agent Wilmington 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 the Exchange Agent Wilmington Trust believes in good faith to be genuine and to have been signed or represented by a proper person or personspersons acting in a fiduciary or representative capacity;
(vi) may rely on and shall be protected in acting upon written or oral instructions from the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer or Designated Officerany other designed officer of the Company;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange AgentWilmington Trust's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent Wilmington Trust hereunder in good faith and in accordance with the advice or opinion of such counsel;; and
(viii) shall not advise any person tendering Old Preferred Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Preferred Securities or as to the market value, decline or appreciation in market value of any Old Preferred Securities that may or may not occur as a result of the Exchange Offer or as to the market value of the New Exchange Preferred Securities; and
(ix) The Exchange Agent . Wilmington Trust shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx the Company and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offerfrom Wilmington Trust. Xxxxxxx The Company and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent n. Wilmington Trust shall advise by facsimile transmission or telephone orally, and promptly thereafter confirm in writing writing, to Xxxxxxx the Company and the Trust and such other person or persons as Xxxxxxx the Company and the Trust 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 liquidation amount of Old Preferred Securities which have been tendered pursuant to the terms of the Exchange Offer and the items received by the Exchange Agent Wilmington Trust pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent Wilmington Trust will also provide, and cooperate in making available to Xxxxxxx the Company and the Trust Trust, or any such other person or persons as requested upon request (such request if made orally, to be confirmed in writing) made from time to time, such other information in its possession as Xxxxxxx the Company and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by Wilmington Trust to the Exchange Agent to Xxxxxxx Company and the Trust, and such person or persons as Xxxxxxx the Company and the Trust may request, of access to those persons on the Exchange AgentWilmington Trust's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx the Company and the Trust shall have received adequate information in sufficient detail to enable Xxxxxxx the Company and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent Wilmington Trust shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation principal amount of Old Preferred Securities tendered and tendered, the aggregate liquidation amount of Old Preferred Securities accepted accepted, and deliver said list to Xxxxxxx the Company and the Trust.
q. o. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent Wilmington Trust as to the date and the time of receipt thereof and shall be preserved by Wilmington Trust as to the Exchange Agent date and the time of receipt thereof and shall be preserved by Wilmington Trust for a period of time at least equal to the period of time the Exchange Agent Wilmington Trust preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by Wilmington Trust to the Exchange Agent to Xxxxxxx Company and the Trust. The Exchange Agent Wilmington Trust shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx the Company or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (Superior National Insurance Group Inc)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Union to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Union agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Union will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Original Capital Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinOriginal Capital Securities.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Union has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent First Union shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent First Union will examine each of the Letters of Transmittal and certificates for Old Original Capital Securities and any other documents delivered or mailed to the Exchange Agent First Union by or for Holders of the Old Original Capital Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent First Union with respect to the Old Original Capital Securities, 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 and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Original Capital Securities have otherwise been properly tendered, (iii) Original Capital Securities tendered in part are tendered in liquidation amounts of $1,000 per Capital Security and that if any Original Capital Securities are tendered for exchange in part, the untendered liquidation amount thereof is $1,000, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Original Capital Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or of where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Original Capital Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Original Capital Securities exists, First Union will endeavor, upon request of the Exchange Agent will endeavor Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent First Union 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.
e. d. With the approval of the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent First Union is authorized to waive any irregularities in connection with any tender of Old Original Capital Securities pursuant to the Exchange Offer.
f. e. Tenders of Old Original Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Original Capital Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Original Capital Securities which the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent f. First Union shall advise Xxxxxxx the Company and the Trust with respect to any Old Original Capital Securities received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old Original Capital Securities.
h. The Exchange Agent g. First Union shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Original Capital Securities tendered in part to the transfer agent for split-up and shall return any untendered Old Original Capital Securities or Old Original Capital Securities which have not been accepted by Xxxxxxx the Company and the Trust to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. h. Upon satisfaction or waiver acceptance by the Company and the Trust of all of the conditions any Original Capital Securities duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing) of its acceptance), promptly after the Expiration Date, of all Old Securities properly tendered Company and the Trust will cause Exchange Agent, Capital Securities in exchange therefor to be issued as promptly as practicable and First Union will deliver such Exchange Capital Securities on behalf of the Trust, will exchange such Old Securities for New Securities Company and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series Exchange Capital Securities for each $1,000 liquidation amount of Old Original Capital Securities tendered as promptly as practicable after acceptance by the Company and the Trust of the Original Capital Securities for exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the Company and the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt . Unless otherwise instructed by the Exchange Agent of certificates for such Old Securities (Company or confirmation of book-entry transfer into the Exchange Agent's account at DTC)Trust, a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You First Union shall issue New Exchange Capital Securities only in denominations of $1,000 or any integral multiple of $1,000 in excess thereof.
j. 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, Old Original Capital Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. j. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Original Capital Securities tendered shall be given by Xxxxxxx or the Company and the Trust either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentFirst Union.
l. k. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Original Capital Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer -- Conditions to the Exchange Offer" or otherwise, First Union shall, upon notice from the Exchange Agent shall Company and the Trust (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 Original Capital Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange AgentFirst Union's possession, to the persons who deposited such certificates.
m. l. Certificates for reissued Old Original Capital Securities, unaccepted Old Original Capital Securities or New Exchange Capital Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by First Union protecting First Union, the Exchange Agent protecting the Exchange Agent, Xxxxxxx Company and the Trust from loss or liability arising out of the non-receipt or non-delivery or of such certificates or (b) by registered mail insured by the Exchange Agent First Union separately for the replacement value of each such certificate.
n. The Exchange Agent m. First Union 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 persons nominee or to engage or use any person to solicit tenders.
o. n. As Exchange Agent, The First National Bank of ChicagoUnion:
(i) shall have no duties or obligations other than those specifically set forth herein or in the section of Prospectus or in the Prospectus captioned "The Exchange Offer," the related Letter of Transmittal or herein or as may be subsequently agreed to in writingTransmittal;
(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 Original Capital Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange AgentFirst Union's reasonable judgment involve any expense or liability, unless the Exchange Agent First Union shall have been furnished with reasonable indemnityindemnity satisfactory to it and additional fees for taking of such action;
(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 the Exchange Agent First Union and reasonably believed by the Exchange Agent First Union 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 the Exchange Agent First Union believes in good faith to be genuine and to have been signed or represented by a proper person or personspersons acting in a fiduciary or representative capacity;
(vi) may rely on and shall be protected in acting upon written or oral instructions from the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer or Designated Officerany other designed officer of the Company;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange AgentFirst Union's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent First Union hereunder in good faith and in accordance with the advice or opinion of such counsel;; and
(viii) shall not advise any person tendering Old Original Capital Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Original Capital Securities or as to the market value, decline or appreciation in market value of any Old Original Capital Securities that may or may not occur as a result of the Exchange Offer or as to the market value of the New Exchange Capital Securities; and
(ix) The Exchange Agent . First Union shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx the Company and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust will furnish you with copies of such documents at your requestfrom First Union.
p. The Exchange Agent o. First Union shall advise by facsimile transmission or telephone orally and promptly thereafter confirm in writing to Xxxxxxx the Company and the Trust and such other person or persons as Xxxxxxx the Company and the Trust 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 liquidation principal amount of Old Original Capital Securities which have been tendered pursuant to the terms of the Exchange Offer and the items received by the Exchange Agent First Union pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent First Union will also provide, and cooperate in making available to Xxxxxxx the Company and the Trust Trust, or any such other person or persons as requested upon request (such request if made orally, to be confirmed in writing) made from time to time, such other information in its possession as Xxxxxxx the Company and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by First Union to the Exchange Agent to Xxxxxxx Company and the Trust, and such person or persons as Xxxxxxx the Company and the Trust may request, of access to those persons on the Exchange AgentFirst Union's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx the Company and the Trust shall have received adequate information in sufficient detail to enable Xxxxxxx the Company and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent First Union shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation principal amount of Old Original Capital Securities tendered and tendered, the aggregate liquidation principal amount of Old Original Capital Securities accepted and deliver said list to Xxxxxxx the Company and the Trust.
q. p. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent First Union as to the date and the time of receipt thereof and shall be preserved by First Union as to the Exchange Agent date and the time of receipt thereof and shall be preserved by First Union for a period of time at least equal to the period of time the Exchange Agent First Union preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by First Union to the Exchange Agent to Xxxxxxx Company and the Trust. The Exchange Agent First Union shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx the Company or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (Premier Bancorp Inc /Pa/)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago Wilmington Trust to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust will perform those services as are specifically set forth in outlined herein, including, but not limited to, accepting tenders of Old Capital Securities, and communicating generally regarding the section Exchange Offer with brokers, dealers, commercial banks, trust companies and other persons, including Holders of the Prospectus captioned "The Exchange Offer" and as are outlined hereinOld Capital Securities.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent Wilmington Trust shall perform such duties in good faithfaith as are outlined herein.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Wilmington Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal and certificates for Old Capital Securities and any other documents delivered or mailed to the Exchange Agent Wilmington Trust by or for Holders of the Old Capital Securities, and any book-book entry confirmations (as defined in the Prospectus) received by the Exchange Agent Wilmington Trust with respect to the Old Capital Securities, 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 and that such book-book entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Capital Securities have otherwise been properly tendered, (iii) Old Capital Securities tendered in part are tendered in Liquidation Amounts of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess thereof and that if any Old Capital Securities are tendered for exchange in part, the untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof, and (iiiiv) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Capital Securities shall be made by Xxxxxxx or the Company and the Trust, whose which determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or of where book-entry confirmations conformations are not in due and proper form or omit certain information, or any of the certificates for Old Capital Securities are not in proper form for transfer or some other irregularity in connection with the tender or acceptance of the Old Capital Securities exists, Wilmington Trust will endeavor, upon request of the Exchange Agent will endeavor Company or the Trust, to advise the tendering Holders of the irregularity and to take any other action as the Company or the Trust may be necessary or advisable as request to cause such irregularity to be corrected. Notwithstanding the foregoingabove, the Exchange Agent Wilmington 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.
e. d. With the approval of the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or the Treasurer or any Assistant Treasurer of the Trust or any person designated in writing by Xxxxxxx (a "Designated Officer") Company, (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officerofficer, the Exchange Agent Wilmington Trust is authorized to waive any irregularities in connection with any tender of Old Capital Securities pursuant to the Exchange Offer.
f. e. Tenders of Old Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Capital Securities shall be considered properly tendered only when tendered in accordance with the such procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Capital Securities which the Trust and the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President or Designated Officer the Treasurer, any Assistant Treasurer or any other designated officer of 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.
g. The Exchange Agent f. Wilmington Trust shall advise Xxxxxxx the Company and the Trust with respect to any Old Capital Securities received as soon as possible after 5:00 p.m., New York City time, on the Expiration Date and accept their its instructions with respect to disposition of such Old Capital Securities.
h. The Exchange Agent g. Wilmington Trust shall accept tenders:
(a) in cases where the Old Securities 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 such person's authority so to act is submitted; and
(c) from persons other than the registered Holder of Old Securities provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Capital Securities tendered in part to the transfer agent for split-up and shall return any untendered Old Capital Securities or Old Capital Securities which have not been accepted by Xxxxxxx the Company and the Trust to the Holder (or such other person as may be designated in Holders promptly after the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
i. h. Upon satisfaction or waiver acceptance by the Company and the Trust of all of the conditions any Old Capital Securities duly tendered pursuant to the Exchange Offer, the Trust will notify the Exchange Agent Offer (such notice acceptance if given orally, to be confirmed in writing) of its acceptance), promptly after the Expiration Date, of all Old Securities properly tendered Company and the Exchange Agent, Trust will cause New Capital Securities in exchange therefor to be issued as promptly as practicable and Wilmington Trust will deliver such New Capital Securities on behalf of the Trust, will exchange such Old Securities for New Securities Company and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount 100,000 (100 Capital Securities) Liquidation Amount of New Capital Securities for each $100,000 Liquidation Amount of Old Capital Securities tendered as promptly as practicable after acceptance by the Company and the Trust of the corresponding series of Old Capital Securities tendered promptly after for exchange and notice (such notice if given orally, to be confirmed in writing) of such acceptance of said Old Securities by the Company and the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt . Unless otherwise instructed by the Exchange Agent of certificates for such Old Securities (Company or confirmation of book-entry transfer into the Exchange Agent's account at DTC)Trust, a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You Wilmington Trust shall issue New Capital Securities only in denominations of $1,000 100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess thereof.
j. 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, Old Capital Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration DateDate in accordance with the terms of the Exchange Offer.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. j. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Capital Securities tendered shall be given by Xxxxxxx or the Company and the Trust either orally (and if given orally, to be confirmed in writing) or in a written notice to the Exchange AgentWilmington Trust.
l. k. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Capital Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Offer -- Conditions to the Exchange Offer" or otherwise, Wilmington Trust shall, upon notice from the Exchange Agent shall Company and the Trust (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 Capital Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange AgentWilmington Trust's possession, to the persons who deposited such certificates.
m. l. Certificates for reissued Old Capital Securities, unaccepted Old Capital Securities or New Capital Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by Wilmington Trust protecting Wilmington Trust, the Exchange Agent protecting the Exchange Agent, Xxxxxxx Company and the Trust from loss or liability arising out of the non-receipt or non-non- delivery or of such certificates or (b) by registered mail insured by the Exchange Agent Wilmington Trust separately for the replacement value of each such certificate.
n. The Exchange Agent m. Wilmington 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 persons nominee or to engage or use any person to solicit tenders.
o. n. As Exchange Agent, The First National Bank of ChicagoWilmington Trust:
(i) shall have no duties or obligations other than those specifically set forth herein or in the section of Prospectus or in the Prospectus captioned "The Exchange Offer," the related Letter of Transmittal or herein or as may be subsequently agreed to in writingTransmittal;
(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 Capital Securities 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange AgentWilmington Trust's reasonable judgment involve any expense or liability, unless the Exchange Agent Wilmington Trust shall have been furnished with reasonable indemnityindemnity satisfactory to it and additional fees for taking of such action;
(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 the Exchange Agent Wilmington Trust and reasonably believed by the Exchange Agent Wilmington 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 the Exchange Agent Wilmington Trust believes in good faith to be genuine and to have been signed or represented by a proper person or personspersons acting in a fiduciary or representative capacity;
(vi) may rely on and shall be protected in acting upon written or oral instructions from the President, any Regular Trustee Senior Vice President, any Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer or Designated Officerany other designed officer of the Company;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange AgentWilmington Trust's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent Wilmington Trust hereunder in good faith and in accordance with the advice or opinion of such counsel;; and
(viii) shall not advise any person tendering Old Capital Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Capital Securities or as to the market value, decline or appreciation in market value of any Old Capital Securities that may or may not occur as a result of the Exchange Offer or as to the market value of the New Capital Securities; and
(ix) The Exchange Agent . Wilmington Trust shall take such action as may from time to time be requested by Xxxxxxx or the Trust 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 Xxxxxxx the Company and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offerfrom Wilmington Trust. Xxxxxxx The Company and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent o. Wilmington Trust shall advise by facsimile transmission or telephone orally and promptly thereafter confirm in writing to Xxxxxxx the Company and the Trust and such other person or persons as Xxxxxxx the Company and the Trust 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 liquidation principal amount of Old Capital Securities which have been tendered pursuant to the terms of the Exchange Offer and the items received by the Exchange Agent Wilmington Trust pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent Wilmington Trust will also provide, and cooperate in making available to Xxxxxxx the Company and the Trust Trust, or any such other person or persons as requested upon request (such request if made orally, to be confirmed in writing) made from time to time, such other information in its possession as Xxxxxxx the Company and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by Wilmington Trust to the Exchange Agent to Xxxxxxx Company and the Trust, and such person or persons as Xxxxxxx the Company and the Trust may request, of access to those persons on the Exchange AgentWilmington Trust's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx the Company and the Trust shall have received adequate information in sufficient detail to enable Xxxxxxx the Company and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent Wilmington Trust shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation principal amount of Old Capital Securities tendered and tendered, the aggregate liquidation principal amount of Old Capital Securities accepted and deliver said list to Xxxxxxx the Company and the Trust.
q. p. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery shall be stamped by the Exchange Agent Wilmington Trust as to the date and the time of receipt thereof and shall be preserved by Wilmington Trust as to the Exchange Agent date and the time of receipt thereof and shall be preserved by Wilmington Trust for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (Symons International Group Inc)
APPOINTMENT AND DUTIES AS EXCHANGE AGENT. x. Xxxxxxx a. The Company and the Trust hereby authorize and appoint The First National Bank of Chicago the Wilmington Trust Company to act as Exchange Agent in connection with the Exchange Offer and The First National Bank of Chicago Wilmington Trust Company agrees to act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The First National Bank of Chicago Wilmington Trust Company will perform only those services as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" and as are outlined herein.
x. Xxxxxxx b. The Company and the Trust acknowledge and agree that The First National Bank of Chicago Wilmington Trust Company has been retained pursuant to this Agreement to act solely as Exchange Agent in connection with the Exchange Offer, and in such capacity, the Exchange Agent shall perform such duties in good faith.
c. The Exchange Agent will establish an account with respect to the Old Securities at The Depository Trust Company ("DTC") for the purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in DTC's system may make book-entry delivery of the Old Securities by causing DTC to transfer such Old Securities into the Exchange Agent's account in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine examine, or request a Regular Trustee of the Trust or a Designated Officer (as defined below) to examine, each of the Letters of Transmittal and certificates for Old Securities and any other documents delivered or mailed to received by the Exchange Agent by from or for Holders of the Old Securities, and any book-entry confirmations (as defined in the Prospectus) received by the Exchange Agent with respect to the Old Securities, 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 and that such book-entry confirmations are in due and proper form and contain the information required to be set forth therein, (ii) the Old Securities have otherwise been properly tendered, and (iii) Holders have provided their correct Tax Identification Number or required certification. Determination of all questions as to validity, form, eligibility and acceptance for exchange of any Old Securities shall be made by Xxxxxxx the Company or the Trust, whose determination shall be final and binding. In each case where the Letters of Transmittal or any other documents have been improperly completed or executed or where book-entry confirmations are not in due and proper form or omit certain information, or any of the certificates for Old Securities are not in proper form for transfer or some other irregularity in connection with the tender of the Old Securities exists, the Exchange Agent will endeavor to advise the tendering Holders of the irregularity and to take any other action may be necessary or advisable as to cause such irregularity to be corrected. Notwithstanding the foregoing, the Exchange Agent shall not incur any liability for failure to give any such notification.
e. With the approval of any Regular Trustee of the Trust or any person designated in writing by Xxxxxxx the Company (a "Designated Officer") (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Regular Trustee or Designated Officer, the Exchange Agent is authorized to waive any irregularities in connection with any tender of Old Securities pursuant to the Exchange Offer.
f. Tenders of Old Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer" and Old Securities shall be considered properly tendered only when tendered in accordance with the procedures set forth therein. Notwithstanding the provisions of this paragraph, Old Securities which any Regular Trustee or Designated Officer shall approve (such approval, if given orally, to be confirmed in writing) as having been properly tendered shall be considered to be properly tendered.
g. The Exchange Agent shall advise Xxxxxxx the Company and the Trust with respect to any Old Securities received after 5:00 p.m., New York City time, on the Expiration Date and accept their instructions with respect to disposition of such Old Securities.
h. The Exchange Agent shall accept tenders:
(ai) in cases where the Old Securities are registered in two or more names only if signed by all named Holders;
(bii) 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 such person's authority so to act is submitted; and
(ciii) from persons other than the registered Holder of Old Securities Securities, provided that customary transfer requirements, including any applicable transfer taxes, requirements are fulfilled. The Exchange Agent shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities or Old Securities which have not been accepted by Xxxxxxx the Company and the Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify the Exchange Agent (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and the Exchange Agent, on behalf of the Trust, will exchange such Old Securities for New Securities provided to it by or on behalf of the Trust and cause such Old Securities to be canceled. Delivery of New Securities will be made on behalf of the Trust by the Exchange Agent at the rate of $1,000 liquidation amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Trust; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by the Exchange Agent of certificates for such Old Securities (or confirmation of book-entry transfer into the Exchange Agent's account at DTC), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
j. 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, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by Xxxxxxx the Company and the Trust not to exchange any Old Securities tendered shall be given by Xxxxxxx the Company or the Trust orally (and confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx the Company and the Trust do not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise, the Exchange Agent shall promptly after the expiration or termination of the Exchange Offer return such certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in the Exchange Agent's possession, to the persons who deposited such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities or New Securities shall be forwarded by (a) first-class certified mail, return receipt requested under a blanket surety bond obtained by the Exchange Agent at the expense of the Company protecting the Exchange Agent, Xxxxxxx the Company and the Trust from loss or liability arising out of the non-receipt or non-delivery or such certificates or (b) by registered mail insured by the Exchange Agent at the expense of the Company separately for the replacement value of each such certificate.
n. The Exchange Agent 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 persons or to engage or use any person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicagothe Wilmington Trust Company:
(i) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," 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 Securities deposited pursuant to the Exchange Offer or any certificates for the New Securities issued 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;
(iii) shall not be obligated to take any legal action hereunder which might in the Exchange Agent's reasonable judgment involve any expense or liability, unless the Exchange Agent shall have been furnished with reasonable indemnityindemnity reasonably satisfactory to it;
(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 the Exchange Agent and reasonably believed by the Exchange Agent to be genuine and to have been signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request, 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 the Exchange Agent believes in good faith to be genuine and to have been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any questions relating to the Exchange Agent's duties and responsibilities and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by the Exchange Agent hereunder in good faith and in accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of its Old Securities or as to the market value, decline or appreciation in market value of any Old Securities or as to the market value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to time be requested by Xxxxxxx the Company or the Trust 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 Xxxxxxx the Company and the Trust, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the procedures for accepting (or withdrawing from) the Exchange Offer. Xxxxxxx The Company and the Trust will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or telephone and promptly thereafter confirm in writing to Xxxxxxx the Company and the Trust and such other persons as Xxxxxxx the Company and the Trust may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requestedrequested by the Company), up to and including the Expiration Date, the aggregate liquidation amount of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by the Exchange Agent pursuant to the Exchange Offer and this Agreement, reporting separately and cumulatively as to items properly received and items improperly received. In addition, the Exchange Agent will also provide, and cooperate in making available to Xxxxxxx the Company and the Trust or any such other persons as requested from time to time, such other information in its possession as Xxxxxxx the Company and the Trust may reasonably request. Such cooperation shall include, without limitation, the granting by the Exchange Agent to Xxxxxxx the Company and the Trust, and such persons as Xxxxxxx the Company and the Trust may request, of access to those persons on the Exchange Agent's staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date Xxxxxxx the Company and the Trust shall have received information in sufficient detail to enable Xxxxxxx the Company and the Trust to decide whether to extend the Exchange Offer. The Exchange Agent shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Old Securities tendered and the aggregate liquidation amount of Old Securities accepted and deliver said list to Xxxxxxx the Company and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery received by the Exchange Agent shall be stamped by the Exchange Agent as to the date and time of receipt thereof and shall be preserved by the Exchange Agent for a period of time at least equal to the period of time the Exchange Agent preserves other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by the Exchange Agent to Xxxxxxx the Company and the Trust. The Exchange Agent shall dispose of unused Letters of Transmittal and other surplus materials by returning them to Xxxxxxx the Company or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or right of set-off whatsoever that the Exchange Agent may have respect to funds deposited with it for the payment of transfer taxes by reasons of amounts, if any, borrowed by Xxxxxxx the Company or the Trust, of Trust or any of its or their subsidiaries or affiliates pursuant to any loan or credit agreement with the Exchange Agent or for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent 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 the Exchange Agent which shall be controlled by this Agreement.
Appears in 1 contract
Samples: Exchange Agency Agreement (First American Financial Corp)
