EXHIBIT 99.3
FORM OF EXCHANGE AGENCY AGREEMENT
__________________, 1997
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
Ladies and Gentlemen:
NGC Corporation, a Delaware corporation, as Sponsor (the "Corporation"),
and NGC Corporation Capital Trust I, a Delaware statutory business trust (the
"Trust"), hereby appoint The First National Bank of Chicago ("Bank of Chicago")
to act as exchange agent (the "Exchange Agent") in connection with an exchange
offer by the Corporation and the Trust to exchange up to $200,000,000 aggregate
Liquidation Amount of the Trust's 8.316% Series B Subordinated Capital
Securities (SKIS(SM)) (the "Exchange Capital Securities"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like aggregate Liquidation Amount of the Trust's 8.316% Series A
Subordinated Capital Securities (SKIS(SM)) (the "Old Capital Securities" and
together with the Exchange Capital Securities, the "Capital Securities"). The
terms and conditions of the exchange offer are set forth in a Prospectus dated
______________, 1997 (as the same may be amended or supplemented from time to
time, the "Prospectus") and in the related Letter of Transmittal, which together
constitute the "Exchange Offer." The registered holders of the Old Capital
Securities or the Exchange Capital Securities, as applicable, are hereinafter
referred to as "Holders." Capitalized terms used herein and not defined shall
have the respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Corporation, the Trust and Bank of Chicago contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement among the
Corporation, the Trust and Bank of Chicago as Exchange Agent with respect to the
Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Corporation and the Trust hereby appoint Bank of Chicago to act as
Exchange Agent in connection with the Exchange Offer and Bank of Chicago agrees
to act as Exchange Agent in connection with the Exchange Offer. As Exchange
Agent, Bank of Chicago will perform those services as are outlined herein,
including, but not limited to, accepting tenders of Old Capital Securities and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Old Capital Securities.
b. The Corporation and the Trust acknowledge and agree that 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 Bank of
Chicago shall perform such duties in good faith as are outlined herein.
c. Bank of Chicago will examine each of the Letters of Transmittal and
certificates for Old Capital Securities and any other documents delivered or
mailed to Bank of Chicago by or for Holders of the Old Capital Securities, and
any Book-Entry Confirmations (as defined in the Prospectus) received by Bank of
Chicago with respect to the Old Capital Securities, to ascertain whether: (i)
the Letters of Transmittal and 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 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 (iv) Holders have provided their correct Tax
Identification Number 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 the Corporation or the Trust, whose
determination shall be final and binding. In each case where the Letters of
Transmittal or any other document has been improperly completed or executed or
where a Book-Entry Confirmation is not in due and proper form or omits certain
information, or any certificate for Old Capital Securities 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, Bank of Chicago will
endeavor to advise the tendering 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 request to cause such irregularity or deficiency to
be corrected. Notwithstanding the above, 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.
d. With the approval of the President, any Vice President or the
Treasurer or any Assistant Treasurer of the Corporation (such approval, if given
orally, to be confirmed in writing), 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.
e. Tenders of Old Capital Securities may be made only as set forth in the
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.
f. Bank of Chicago shall advise the Corporation and the Trust 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
the Corporation's or the Trust's instructions with respect to the disposition of
such Old Capital Securities.
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g. Bank of Chicago shall deliver certificates for Old Capital Securities
tendered in part to the transfer agent for split-up and shall return any
untendered Old Capital Securities and all Old Capital Securities which have not
been accepted by the Corporation and the Trust to the Holders thereof promptly
after the expiration or termination of the Exchange Offer.
h. Upon acceptance by the Corporation and the Trust of any Old Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance, if
given orally, to be confirmed in writing), the Corporation and the Trust will
cause Exchange Capital Securities in exchange therefor to be issued as promptly
as possible and Bank of Chicago will deliver such Exchange Capital Securities on
behalf of the Corporation and the Trust at the rate of $100,000 (100 Capital
Securities) Liquidation Amount of Exchange Capital Securities for each $100,000
Liquidation Amount of Old Capital Securities tendered as promptly as possible
after acceptance by the Corporation and the Trust of the Old Capital Securities
for exchange notice (such notice, if given orally, to be confirmed in writing)
of such acceptance by the Corporation and the Trust. Unless otherwise
instructed by the Corporation or the Trust, Bank of Chicago shall issue Exchange
Capital Securities only in denominations of $100,000 (100 Capital Securities)
Liquidation Amount or any integral multiple of $1,000 in excess thereof.
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 prior to 5:00 p.m., New York City time, on
the Expiration Date in accordance with the terms of the Exchange Offer.
j. Notice of any decision by the Corporation and the Trust not to
exchange any Old Capital Securities tendered shall be given by the Corporation
or the Trust to Bank of Chicago either orally (if given orally, to be confirmed
in writing) or in a written notice.
k. If the Corporation 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 -- Conditions to the Exchange Offer" or otherwise, Bank of
Chicago shall, upon notice from the Corporation and the Trust (such notice, if
given orally, to be confirmed in writing), promptly after the expiration or
termination of the Exchange Offer return the 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 Bank of Chicago's possession, to the persons who deposited such
certificates.
l. Certificates, if issued in definitive form, for reissued Old Capital
Securities, unaccepted Old Capital Securities or Exchange Capital Securities
shall be forwarded (a) by first-class certified mail, return receipt requested,
under a blanket surety bond obtained by Bank of Chicago protecting Bank of
Chicago, the Corporation 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 by Bank of Chicago separately for the replacement value of each such
certificate.
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m. Bank of Chicago 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 nominee or to engage or use any person to solicit
tenders.
n. As Exchange Agent, Bank of Chicago:
(i) shall have no duties or obligations other than those
specifically set forth 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 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 Bank of Chicago's reasonable judgment involve any expense or
liability, unless Bank of Chicago shall have been furnished with indemnity
satisfactory to it for the taking of such action;
(iv) may conclusively 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 Bank of Chicago and
reasonably believed by Bank of Chicago to be genuine and to have been
signed by the proper party or parties;
(v) may conclusively act upon any tender, statement, request,
comment, agreement or other instrument whatsoever (not only as to the due
execution and validity and effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein) which Bank of
Chicago believes in good faith to be genuine and to have been signed or
made by a proper person or persons;
(vi) may conclusively rely on and shall be fully protected in
acting upon written or oral instructions from the President, any Vice
President, the Treasurer or any Assistant Treasurer of the Corporation
(such instruction, if given orally, to be confirmed in writing);
(vii) may consult with its own counsel with respect to any
questions relating to Bank of Chicago'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 Bank of Chicago hereunder in good faith and in accordance with the
advice of such counsel;
(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 Exchange Capital Securities; and
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(ix) shall take such action as may from time to time be requested
by the Corporation or the Trust to furnish copies of the Prospectus, the
Letter of Transmittal, the Notice of Guaranteed Delivery or such other
forms as may be approved from time to time by the Corporation and the Trust
to all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer. The
Corporation and the Trust will furnish Bank of Chicago with copies of such
documents at its request, and Bank of Chicago will furnish from its own
inventory the Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
o. Bank of Chicago shall advise orally and promptly thereafter confirm in
writing to the Corporation and the Trust and such other person or persons as the
Corporation 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 Capital Securities which have been tendered pursuant to the terms
of the Exchange Offer and the items received by Bank of Chicago pursuant to the
Exchange Offer and this Agreement. In addition, Bank of Chicago will also
provide, and cooperate in making available to the Corporation and the Trust or
any such other person or persons as the Corporation and the Trust may request
from time to time, such other information in its possession as the Corporation,
the Trust or any such other person or persons as the Corporation and the Trust
may designate may reasonably request (such request if made orally, to be
confirmed in writing). Such cooperation shall include, without limitation, the
granting by Bank of Chicago to the Corporation and the Trust, and such person or
persons as the Corporation and the Trust may request, access to those persons on
Bank of Chicago's staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Corporation and the
Trust shall have received adequate information in sufficient detail to enable
the Corporation and the Trust to decide whether to extend the Exchange Offer.
Bank of Chicago shall prepare a final list of all persons whose tenders were
accepted, the aggregate Liquidation Amount of Old Capital Securities tendered
and the aggregate Liquidation Amount of Old Capital Securities accepted and
deliver said list to the Corporation and the Trust.
p. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery shall be stamped by Bank of Chicago as to the date and the
time of receipt thereof and shall be preserved by Bank of Chicago for a period
of time at least equal to the period of time Bank of Chicago preserves other
records pertaining to the transfer of securities, or one year, whichever is
longer, and thereafter shall be delivered by Bank of Chicago to the Corporation
and the Trust. Bank of Chicago shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Corporation or the Trust.
q. Bank of Chicago hereby expressly waives any lien, encumbrance or right
of set-off whatsoever that Bank of Chicago may have with respect to funds
deposited with it for the payment of transfer taxes by reasons of amounts, if
any, borrowed by the Corporation or the Trust, or any of its or their
subsidiaries or affiliates, pursuant to any loan or credit agreement with Bank
of Chicago or for compensation owed to Bank of Chicago hereunder or for any
other matter.
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2. COMPENSATION.
A fee of $________ will be payable by the Corporation to Bank of Chicago in
its capacity as Exchange Agent; provided, however, that Bank of Chicago reserves
the right to receive reimbursement from the Corporation for any reasonable out-
of-pocket expenses incurred as Exchange Agent in performing the services
described herein. The obligations of the Corporation hereunder shall survive
the termination of this Agreement.
3. INDEMNIFICATION.
a. The Corporation and the Trust hereby agree to protect, defend,
indemnify and hold harmless Bank of Chicago and its officers, directors,
employees and agents from and against any and all costs, losses, liabilities,
expenses (including reasonable counsel fees and disbursements) and claims
imposed upon or asserted against Bank of Chicago on account of any action taken
or omitted to be taken by Bank of Chicago in connection with its acceptance of
or performance of its duties under this Agreement and to reimburse Bank of
Chicago upon demand for the reasonable costs and expenses of defending itself
against any claim or liability arising out of or relating to this Agreement.
This indemnification shall survive the release, discharge, termination and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, neither the Corporation nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Bank of Chicago's bad faith, gross negligence or willful
misconduct. In no case shall the Corporation or the Trust be liable under this
indemnification agreement with respect to any claim against Bank of Chicago
until the Corporation and the Trust shall be notified by Bank of Chicago, by
letter of the written assertion of a claim against Bank of Chicago or of any
other action commenced against Bank of Chicago. Such notice shall be delivered
promptly after Bank of Chicago shall have received any such written assertion or
shall have been served with a summons in connection therewith, provided, that,
Bank of Chicago's failure to give such notice shall not excuse the Corporation
or the Trust from its obligations hereunder (except to the extent the
Corporation or the Trust is prejudiced by such delay). The Corporation and the
Trust shall be entitled to participate at their own expense in the defense of
any such claim or other action, and, if the Corporation and the Trust so elect,
the Corporation and the Trust may assume the defense of any pending or
threatened action against Bank of Chicago in respect of which indemnification
may be sought hereunder with counsel reasonably acceptable to Bank of Chicago,
in which case the Corporation and the Trust shall not thereafter be responsible
for the fees and disbursements of legal counsel for Bank of Chicago under this
paragraph; provided, however, that the Corporation and the Trust shall not be
entitled to assume the defense of any such action if the named parties to such
action include the Corporation or the Trust and Bank of Chicago and
representation of the parties by the same legal counsel would, in the written
opinion of counsel for Bank of Chicago, be inappropriate due to actual or
potential conflicting interests between them. It is understood that the
Corporation and the Trust shall not be liable under this paragraph for the fees
and disbursements of more than one legal counsel for Bank of Chicago. In the
event that the Corporation and the Trust shall assume the defense of any such
suit with counsel reasonably acceptable to Bank of Chicago, neither the
Corporation nor the Trust shall thereafter be liable for the fees and expenses
of any counsel retained by Bank of Chicago.
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b. Bank of Chicago agrees that, without the prior written consent of the
Corporation and the Trust (which consent shall not be unreasonably withheld), it
will not settle, compromise or consent to the entry of any judgment in 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 Bank of Chicago, the Corporation,
the Trust or any of their respective directors, officers and controlling persons
is an actual or potential party to such claim, action or proceeding).
c. The Corporation agrees to indemnify and hold harmless the Trust from
and against any and all losses, claims, damages and liabilities whatsoever,
which are due from the Trust under this Section.
4. TAX INFORMATION.
The Corporation and the Trust 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 Corporation and the Trust understand that they are
required, in certain instances, to deduct 31% with respect to Distributions paid
on the Exchange Capital Securities and proceeds from the sale, exchange,
redemption or retirement of the Exchange Capital Securities from Holders of
Exchange Capital Securities who have not supplied their Taxpayer Identification
Number or required certification. Such funds will be turned over to the
Internal Revenue Service. Bank of Chicago shall notify the Corporation and the
Trust of any Holder of Exchange Capital Securities who has failed to supply such
Taxpayer Identification Number or certification.
5. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware applicable to contracts executed in and to be
performed in that State.
6. NOTICES.
Except as otherwise provided herein, any communication or notice provided
for hereunder shall be in writing and shall be given (and shall be deemed to
have been given upon receipt) by delivery in person, facsimile or overnight
delivery or by registered or certified mail (postage prepaid, return receipt
requested) to the applicable party at the addresses indicated below:
If to the Corporation:
NGC Corporation
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
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If to the Trust:
NGC Corporation Capital Trust I
c/o NGC Corporation
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
If to: The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Corporate Trust Services Division
(000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. PARTIES IN INTEREST.
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto and nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Without limitation of
the foregoing, the parties hereto expressly agree that no Holder of Old Capital
Securities or Exchange Capital Securities shall have any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY.
This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement. If any term or other provision
of this Agreement or the application thereof is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other provisions of
this Agreement shall nevertheless remain in full force and effect.
9. CAPTIONS.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire understanding of the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended or
modified nor may any provision hereof be waived except in writing signed by each
party to be bound thereby.
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11. TERMINATION.
This Agreement shall terminate upon the earliest of (a) the 90th day
following the expiration, withdrawal or termination of the Exchange Offer, (b)
the close of business on the date of actual receipt of written notice by Bank of
Chicago from the Corporation and the Trust stating that this Agreement is
terminated, (c) one year following the date of this Agreement, and (d) the time
and date on which this Agreement shall be terminated by mutual consent of the
parties hereto.
12. MISCELLANEOUS.
Bank of Chicago hereby acknowledges receipt of the Prospectus and the forms
of 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 forms of 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,
rights, powers and indemnification of Bank of Chicago as Exchange Agent, which
shall be controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and your
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to the Corporation a copy of this Agreement so
signed, whereupon this Agreement and Bank of Chicago's acceptance shall
constitute a binding agreement among Bank of Chicago, the Corporation and the
Trust.
Very truly yours,
NGC CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
NGC CORPORATION CAPITAL TRUST I
By:____________________________
Name:__________________________
Title: Administrative Trustee
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Accepted and agreed to as of
the date first written above:
THE FIRST NATIONAL BANK
OF CHICAGO
as Exchange Agent
By:_______________________
Name:_____________________
Title:____________________
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