EXHIBIT 99.3
___________, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Leucadia National Corporation, a New York corporation (the "Company"),
and Leucadia Capital Trust I, a Delaware statutory business trust (the "Trust"),
propose to make an offer to exchange the Trust's 8.65% Capital Trust Pass-
through SecuritiesSM (TRUPSSM) (liquidation amount $1,000 per Capital Security)
(the "Original Capital Securities") for the Trust's registered 8.65% Capital
Trust Pass-through SecuritiesSM (TRUPSSM) (liquidation amount $1,000 per Capital
Security) (the "Exchange Capital Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
___________, 1997 (the "Prospectus"), and in the Letter of Transmittal (the
"Letter of Transmittal," which together constitute the "Exchange Offer"), which
will be distributed to all record holders of the Original Capital Securities
upon commencement of the Exchange Offer. The Original Capital Securities and the
Exchange Capital Securities are collectively referred to herein as the "Capital
Securities."
The Company and the Trust hereby appoint The Chase Manhattan Bank to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Company and the
Trust on or about _______ , 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Original Capital Securities to
accept the Exchange Offer, and contains instructions with respect to the
delivery of Original Capital Securities tendered. The Exchange Agent's
obligations with respect to receipt and inspection of the Letter of Transmittal
in
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NYFS04...:\30\76830\0146\1980\AGR5127M.360
connection with the Exchange Offer shall be satisfied for all purposes hereof by
inspection of an electronic message (an "Agent's Message") transmitted to the
Exchange Agent by Exchange Offer participants in accordance with the Automated
Tender Offer Program ("ATOP") of the Depository Trust Company ("DTC"), and by
otherwise observing and complying with all procedures established by DTC in
connection with ATOP.
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 Company and the
Trust may extend the Exchange Offer (the "Expiration Date"). Subject to the
terms and conditions set forth in the Prospectus, the Company and the Trust
expressly reserve the right to extend the Exchange Offer from time to time and
may extend the Exchange Offer by giving oral (confirmed in writing) or written
notice to you before 5:00 p.m., New York City time, on the business day
following the previously scheduled Expiration Date, and in such case the term
"Expiration Date" shall mean the time and date on which such Exchange Offer as
so extended shall expire.
The Company and the Trust expressly reserve the right to delay, amend or
terminate the Exchange Offer, and not to accept for exchange any Original
Capital Securities not theretofore accepted for exchange, upon the occurrence of
any of the conditions of the Exchange Offer specified in the Prospectus under
the captions "The Exchange Offer -- Terms of Exchange" and "Conditions to
Exchange Offer." The Company and the Trust will give to you as promptly as
practicable oral (confirmed in writing) or written notice of any delay,
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 herein or in the section of the Prospectus captioned "The Exchange
Offer" and such duties which are necessarily incidental thereto.
2. You will establish an account with respect to the Original Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems
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may make book-entry delivery of the Original Capital Securities by causing the
Book-Entry Transfer Facility to transfer such Original Capital 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 (or Agent's
Message in lieu thereof) and Original Capital 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 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
instructions set forth therein and in the Prospectus and (ii) the Original
Capital 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 Original Capital Securities are not in proper form 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. All questions
as to the form of documents, validity, eligibility (including time of receipt)
and acceptance for exchange of any tendered Original Capital Securities will be
determined by the Company and the Trust, in their sole discretion, whose
determination shall be final and binding on all parties. The Company and the
Trust reserved in the Exchange Offer the absolute right, in their sole
discretion, to reject any and all tenders determined by them not to be in proper
form or the acceptance of which, or exchange for, may, in the view of counsel to
the Company or the Trust, be unlawful. The Company and the Trust also reserved
in the Exchange Offer the absolute right, subject to applicable law, to waive
any of the conditions of the Exchange Offer as set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions to Exchange Offer" or any
condition or irregularity in any tender of Original Capital Securities of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders.
4. With the approval of the Chairman of the Board,
the President, or any Vice President of the Company (such
approval, if given orally, promptly to be confirmed in
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writing) or any other party designated by such officer in writing, you are
authorized to waive any irregularities in connection with any tender of Original
Capital Securities pursuant to the Exchange Offer.
5. Tenders of 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 -- Procedures for Tendering Old Capital Securities" and Original
Capital 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, Original
Capital Securities which the Chairman of the Board, the President or any Vice
President of the Company and at least one Administrator of the Trust or any
other party designated by any such officer or administrator in writing shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, promptly shall be confirmed in
writing).
6. You shall advise the Company and the Trust with respect to any
Original Capital Securities delivered subsequent to the Expiration Date and
accept their instructions with respect to disposition of such Original Capital
Securities, provided that this paragraph 6 shall not apply to tenders pursuant
to the Guaranteed Delivery procedures set forth in the Exchange Offer.
7. Subject to paragraphs 4, 5 and 6 hereof, you shall accept tenders:
(a) in cases where the Original Capital 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 his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Original
Capital Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
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You shall accept partial tenders of Original Capital Securities
where so indicated and as permitted in the Letter of Transmittal and deliver the
Original Capital Securities to the transfer agent for split-up and return any
untendered Original Capital 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 Company and the Trust will notify you (such notice if given orally,
promptly to be confirmed in writing) of their acceptance, promptly after the
Expiration Date, of all Original Capital Securities properly tendered and you,
on behalf of the Company and the Trust, will exchange such Original Capital
Securities for Exchange Capital Securities and cause such Original Capital
Securities to be canceled. Delivery of Exchange Capital Securities will be made
on behalf of the Company and the Trust by you at the rate of $1,000 liquidation
amount of Exchange Capital Securities for each $1,000 liquidation amount of the
Original Capital Securities tendered promptly after notice (such notice if given
orally, promptly to be confirmed in writing) of acceptance of said Original
Capital Securities by the Company and the Trust; provided, however, that in all
cases, Original Capital Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certificates for such Original
Capital 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, or
an Agent's Message in lieu thereof, and any other required document. You shall
issue Exchange Capital Securities only in denominations of $1,000 liquidation
amount or any integral multiple thereof.
9. Tenders of Original Capital Securities pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date as set forth in the
Prospectus under the caption "The Exchange Offer -- Withdrawal Rights".
10. The Company and the Trust shall not be required to exchange any
Original Capital Securities tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company and the Trust
not to exchange any Original Capital Securities tendered shall be
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given (such notices if given orally, promptly shall be confirmed in writing) by
the Company and the Trust to you.
11. If, pursuant to the Exchange Offer, the Company and the Trust do not
accept for exchange all or part of the Original Capital Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the captions "The Exchange Offer -- Terms Of Exchange"
and "- -Conditions to Exchange Offer" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted 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 your possession, to
the persons who deposited them.
12. All reissued Original Capital Securities, unaccepted Original
Capital Securities or Exchange Capital Securities shall be forwarded by (a)
first-class mail, postage pre-paid under a blanket surety bond protecting you,
the Company 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.
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 persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the Original Capital Securities 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;
(b) 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;
(c) shall not be liable to the Company or the
Trust for any action taken or omitted by you, or any action
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suffered by you to be taken or omitted, without negligence, misconduct or bad
faith on your part, by reason of or as a result of the administration of your
duties hereunder in accordance with the terms and conditions of this Agreement
or by reason of your compliance with the instructions set forth herein or with
any written or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in reliance
upon any certificate, instrument, opinion, notice, letter, facsimile 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;
(d) 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 you shall in good
faith reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions (confirmed in writing) from any officer of the
Company or Administrator of the Trust with respect to the Exchange Offer;
(f) shall not advise any person tendering Original Capital
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
Original Capital Securities;
(g) may consult with counsel and the written advice or opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by you hereunder in good faith and in
reliance thereon.
15. You shall send to all holders of Original Capital Securities a copy
of the Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery,
as used in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company and the Trust to commence
the Exchange Offer and take such other action as may from time to time be
requested by the Company or the Trust or their counsel (and such other action as
you may reasonably deem appropriate) to furnish
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copies of the Exchange Offer Documents or such other forms as may be approved
from time to time by the Company and the Trust, to all holders of Original
Capital Securities and 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 Company and 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
Company, Attention: Corporate Secretary, at the Company's offices at 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; telephone number (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Corporate Secretary of the
Company, and such other person or persons as the Company and the Trust may
request in writing, not later than 7:00 p.m., New York City time, each business
day, and more frequently if reasonably requested, up to and including the
Expiration Date, as to the number of Original Capital 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 Company or any such other
person or persons as the Company and the Trust requests in writing from time to
time prior to the Expiration Date of such other information as the Company and
the Trust reasonably request. Such cooperation shall include, without
limitation, the granting by you to the Company and the Trust and such person as
the Company and the Trust 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 Company and the Trust shall have received
information in sufficient detail to enable them 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 Original Capital Securities tendered
and the aggregate principal amount of Original Capital Securities accepted and
deliver said list to the Company and the Trust.
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
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period of time at least equal to the period of time you customarily preserve
other records pertaining to the transfer of securities. You shall dispose of
unused Letters of Transmittal and other surplus materials in accordance with
your customary procedures.
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 Company
or the Trust, or any of the Company's 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 and reimbursement of out-of-pocket expenses as set
forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Exchange Offer Documents and
further acknowledge that you have examined each of them. Any inconsistency
between this Agreement, on the one hand, and the Prospectus, the Letter of
Transmittal and such other forms (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. The Company and the Trust, jointly and severally, agree to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys' fees and expenses,
arising out of or in connection with your appointment as Exchange Agent and the
performance of your duties hereunder, including, without limitation, any act,
omission, delay or refusal made by you in reasonable 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 Original Capital 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 Original Capital Securities; provided,
however, that neither the Company nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost
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or expense to the extent arising out of your negligence, willful misconduct or
bad faith. The Company's and the Trust's obligations under this paragraph 21
shall survive the termination of this Agreement and the discharge of your
obligations hereunder and any other termination of this Agreement under any
federal or state bankruptcy law.
22. 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 Original Capital Securities your check in the amount of all
transfer taxes so payable, and the Company and the Trust shall reimburse you for
the amount of any and all transfer taxes payable in respect of the exchange of
Original Capital Securities; provided, however, that you shall reimburse the
Company 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.
23. 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.
24. This Agreement may be executed in two 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.
25. 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.
26. 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.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given when delivered by hand, facsimile transmission or first-
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class mail, postage prepaid, to such party, addressed to it, as its address or
telecopy number set forth below:
If to the Company:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
If to the Trust:
c/o Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trustee Administration
Department
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19, 21 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company and the Trust any certificates for Original Capital Securities,
funds or property (including, without limitation, Letters of Transmittal and any
other documents relating to the Exchange Offer) then held by you as Exchange
Agent under this Agreement.
29. 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.
LEUCADIA NATIONAL CORPORATION
By:________________________________
Name:
Title:
LEUCADIA CAPITAL TRUST I
By:________________________________
Name:
Title: Administrator
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By:_________________________
Name:
Title:
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LEUCADIA NATIONAL CORPORATION
LEUCADIA CAPITAL TRUST I
Exchange Agency
Fee Schedule
Flat Fee...........................................................$5,000.00
Out-Of-Pocket Expenses
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses, facsimile, stationary, postage,
telephone, overnight courier and messenger costs, all of which shall be paid by
the Company.
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