April , 1997
FORM OF
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxxx Capital Trust, a trust formed under the laws of the State
of Delaware (the "Trust"), proposes to make an offer (the "Exchange Offer") to
exchange its 8.197% Capital Securities (Liquidation Amount $1,000 per Capital
Security) (the "Old Securities") for its 8.197% Capital Securities (Liquidation
Amount $1,000 per Capital Security), which have been registered under the
Securities Act of 1933 (the "New Securities"). All of the beneficial interests
represented by common securities of the Trust are owned by X.X. Xxxxxxx
Corporation, a Delaware corporation (the "Corporation"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated April __, 1997 (the "Prospectus"), to be distributed to all
record holders of the Old Securities. The Old Securities and the New Securities
are collectively referred to herein as the "Securities."
The Trust hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Trust on or
about April __, 1997. The Letter of Transmittal accompanying the Prospectus (or
in the case of book entry securities, the ATOP system) is to be used by the
holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Old Securities
tendered in connection therewith and (ii) the book entry transfer of Securities
to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_______ __, 1997 or on such later date or time to which the Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Trust expressly reserves the
right to extend the Exchange Offer from time to time by giving oral (to be
confirmed
in writing) or written notice to you before 9:00 A.M., New York City time, on
the business day following the previously scheduled Expiration Date.
The Trust expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions to the Exchange Offer." The Trust will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance of Old Securities to you promptly after any amendment, termination
or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
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will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Securities
at The Depository Trust Company (the "Book-Entry Transfer Facility") 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 the
Book-Entry Transfer Facility's system may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of 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 instructions set forth
therein and (ii) the Old Securities have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Old Securities
are not in proper from for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of any Administrative Trustee of the Trust or
any person designated in writing by the Corporation (a "Designated Officer")
(such approval, if given orally, to be
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confirmed in writing) or any other party designated by any such Administrative
Trustee or Designated Officer in writing, you are authorized to waive any
irregularities in connection with any tender of Old Securities pursuant to the
Exchange Offer.
5. 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 -- Procedures for Tendering Old Capital Securities," and Old
Securities shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Securities
which any Administrative Trustee of the Trust or Designated Officer of the
Corporation shall approve as having been properly tendered shall be considered
to be properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Trust and the Corporation with respect to
any Old Securities received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Securities.
7. You 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 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.
You 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 to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (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 you, 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
you at the rate of $1,000
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principal amount of New Securities for each $1,000 principal 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 you of certificates for such Old Securities (or
confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile 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. Old Securities may
be tendered in whole or in part in denominations of $100,000 and integral
multiples of $1,000 in excess thereof, provided that if any Old Securities
are tendered for exchange in part, the untendered principal amount thereof
must be $100,000 or any integral multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date.
10. 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 the Trust not to exchange any Old Securities tendered
shall be given orally (and confirmed in writing) by the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does 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, you shall promptly after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Securities (or
effect appropriate book-entry transfer), together with any related req
uired documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by (a) first-class certified
mail, return receipt requested, under a blanket surety bond protecting you and
the Trust from loss or liability arising out of the non-receipt or non-delivery
of such certificates or (b) by registered mail insured separately for the
replacement value of each of such certificates.
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13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth in the Prospectus, the Letter of Transmittal or herein or as may be
subsequently agreed to in writing by you and the Trust;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(d) 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 you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(e) 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 you shall in good faith believe to be
genuine or to have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any Administrative Trustee of the Trust or from any Designated
Officer;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such counsel; and
(h) shall not advise any person tendering Old Securities pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities.
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15. You shall take such action as may from time to time be requested by
the Trust or its counsel or any Designated Officer (and such other action as you
may reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus)
or such other forms as may be approved from time to time by the Trust or the
Corporation, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Trust will furnish you with copies of
such documents at your request. All other requests for information relating to
the Exchange Offer shall be directed to the Trust, Attention: Xxxxxx X. Xxxxx,
Esq., at the address set forth below for notices.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxx X. Xxxxx, Esq. of the Trust,
and such other person or persons as 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, as to the number
of Old Securities which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Trust or the Corporation or any such other person or persons upon oral
request made from time to time on or prior to the Expiration Date of such other
information as it or such person reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Trust or the Corporation
and such person as the Trust or the Corporation may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Trust or the
Corporation shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer. You shall prepare a final list of
all persons whose tenders were accepted, the aggregate principal amount of Old
Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Trust promptly after the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Trust at the address set forth below for Notices.
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18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by
the Trust, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined both of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
21. (a) The Trust covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and expenses,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Old Securities reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Securities; provided, however, that the
Trust shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence or
willful misconduct. In no case shall the Trust be liable under this indemnity
with respect to any claim against you unless the Trust shall be notified by you,
by letter or cable or by facsimile confirmed by letter, of the written assertion
of a claim against you or of any other action commenced against you, promptly
after you shall have received any such written assertion or notice of
commencement of action. The Trust shall be entitled to participate at its own
expense in the defense of any such claim or other action, and, if the Trust so
elects, the Trust may assume the defense of any suit brought to enforce any such
claim. In the event that the Trust shall assume the defense of any such suit or
threatened action in respect of which indemnification may be sought hereunder,
the Trust shall not be liable for the fees and expenses of any additional
counsel thereafter retained by you so long as you consent to the retention of
counsel, which consent may not be unreasonably withheld; provided that the Trust
shall not be entitled to assume the defense of any such action if the named
parties to such action include both the Trust and you and
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representation of both parties by the same legal counsel would, in the
written opinion of counsel to you, be inappropriate due to actual or
potential conflicting interests between them. It is understood that the
Trust shall not be liable under this paragraph for the fees and expenses of
more than one legal counsel for you. In the event that the Trust shall
assume the defense of any such suit, the Trust shall not thereafter be liable
for the fees and expenses of any counsel retained by you.
(b) You agree that, without the prior written consent of the Trust ,
you will not settle, compromise or consent to the entry of any pending or
threatened claim, action or proceeding in respect of which indemnification could
be sought in accordance with the indemnification provisions of this Agreement
(whether or not you or the Trust or any of its trustees or controlling persons
is an actual or potential party to such claim, action or proceeding), unless
such settlement, compromise or consent includes an unconditional release of the
Trust and its trustees and controlling persons from all liability arising out of
such claim, action or proceeding.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Trust understands that you are required in certain
instances to deduct 31% with respect to interest paid on the New Securities and
proceeds from the sale, exchange, redemption or retirement of the New Securities
from holders who have not supplied their correct Taxpayer Identification Number
or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You shall notify the Trust of the amount of any transfer taxes
payable in respect of the exchange of Old Securities and, upon receipt of
written approval from the Trust, you shall deliver or cause to be delivered, in
a timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Securities, your check in the amount
of all transfer taxes so payable, and the Trust shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of Old
Securities; provided, however, that you shall reimburse the Trust for amounts
refunded to you in respect of your payment of any such transfer taxes, at such
time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
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25. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Trust:
X.X. Xxxxxxx Capital Trust
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Trust any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
X.X. XXXXXXX CAPITAL TRUST
By:
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Name: Xxxxxx X. Xxxxx
Title: Administrative Trustee
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
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