EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
February ___, 1999
First Union Trust Company, National Association
One Xxxxxx Square
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: PBI Capital Trust
-----------------
Ladies and Gentlemen:
Premier Bancorp, Inc., a Pennsylvania corporation, as Depositor (the
"Company"), and PBI Capital Trust, a Delaware business trust (the "Trust"),
hereby appoint First Union Trust Company, National Association ("First Union")
to act as exchange agent (the "Exchange Agent") in connection with an exchange
offer by the Company and the Trust to exchange up to $10,000,000 of the Trust's
Series A 8.57% Capital Securities, liquidation amount $1,000 per Capital
Security (the "Original Capital Securities"). The terms and conditions of the
exchange offer are set forth in a Prospectus, dated February 8, 1999 (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 Capital Securities are hereinafter
referred to as the "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
Company, the Trust and First Union contained herein and subject to the terms and
conditions hereof, the following sets forth the agreement among the Company, the
Trust and First Union as Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Company and the Trust hereby authorize First Union to act as
Exchange Agent in connection with the Exchange Offer and First Union agrees to
act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent,
First Union will perform those services as are outlined herein, including, but
not limited to, accepting tenders of Original Capital Securities, and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Original Capital Securities.
b. The Company and the Trust acknowledge and agree that First Union has
been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer, and in such capacity, First Union shall
perform such duties in good faith as are outlined herein.
c. First Union will examine each of the Letters of Transmittal and
certificates for Original Capital Securities and any other documents delivered
or mailed to First Union by or for Holders of the Original Capital Securities,
and any book entry confirmations received by First Union with respect to 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 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 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 (iv) 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 Original Capital Securities shall be made by the Company and the Trust,
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
of where book-entry conformations are not in due and proper form or omit certain
information, or any of the certificates for Original Capital Securities are not
in proper form for transfer or some other irregularity in connection with the
tender or acceptance of the Original Capital Securities exists, First Union will
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 request to cause such irregularity to be corrected. Notwithstanding
the above, 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.
d. With the approval of the Trust and the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer or
any Assistant Treasurer of the Company, (such approval, if given orally, to be
confirmed in writing) or any other party
2
designated by any such officer, First Union is authorized to waive any
irregularities in connection with any tender of Original Capital Securities
pursuant to the Exchange Offer.
e. 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" and Original Capital Securities shall be considered properly
tendered only when tendered in accordance with such procedures set forth
therein. Notwithstanding the provisions of this paragraph, Original Capital
Securities which the Trust and the President, any Senior Vice President, any
Executive Vice President, any Vice President or 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.
f. First Union shall advise the Company and the Trust with respect to any
Original Capital Securities received as soon as possible after 5:00 p.m., New
York City time, on the Expiration Date and accept its instructions with respect
to disposition of such Original Capital Securities.
g. First Union shall deliver certificates for Original Capital Securities
tendered in part to the transfer agent for split-up and shall return any
untendered Original Capital Securities or Original Capital Securities which have
not been accepted by the Company and the Trust to the Holders promptly after the
expiration or termination of the Exchange Offer.
h. Upon acceptance by the Company and the Trust of any Original Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance if
given orally, to be confirmed in writing), the Company and the Trust will cause
Exchange 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 Company and the Trust at the rate of $1,000 liquidation amount of
Exchange Capital Securities for each $1,000 liquidation amount of 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 by
the Company and the Trust. Unless otherwise instructed by the Company or the
Trust, First Union shall issue Exchange Capital Securities only in denominations
of $1,000 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, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
j. Notice of any decision by the Company and the Trust not to exchange any
Original Capital Securities tendered shall be given by the Company and the Trust
either orally (if given orally, to be confirmed in writing) or in a written
notice to First Union.
k. 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
3
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Conditions to the Exchange Offer" or otherwise, First
Union 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
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 First Union's possession, to the persons who
deposited such certificates.
l. Certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or 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 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 by First Union separately for the
replacement value of each such certificate.
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 nominee or to engage or use any person to solicit tenders.
n. As Exchange Agent, First Union:
(i) shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or in the related Letter
of Transmittal;
(ii) will make no representations and will have no responsibilities
as to the validity, value or genuineness of any of the certificates for the
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 First Union's reasonable judgment involve any expense or
liability, unless First Union shall have been furnished with indemnity
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 First Union and
reasonably believed by 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 First Union
believes in good faith to be genuine and to have been signed or represented
by a proper person or persons acting in a fiduciary or representative
capacity;
4
(vi) may rely on and shall be protected in acting upon written or
oral instructions from the President, any Senior Vice President, any
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer or any other designed officer of the Company;
(vii) may consult with its own counsel with respect to any questions
relating to First 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 First Union
hereunder in good faith and in accordance with the advice of such counsel;
and
(viii) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of its Original Capital
Securities or as to the market value, decline or appreciation in market
value of any Original 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. First Union shall 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 the Company and the Trust, to
all persons requesting such documents from First Union.
o. First Union shall advise orally and promptly thereafter confirm in
writing to the Company and the Trust and such other person or persons as 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 principal amount of
Original Capital Securities which have been tendered pursuant to the terms of
the Exchange Offer and the items received by First Union pursuant to the
Exchange Offer and this Agreement. In addition, First Union will also provide,
and cooperate in making available to the Company and the Trust, or any such
other person or persons upon request (such request if made orally, to be
confirmed in writing) made from time to time, such other information in its
possession as the Company and the Trust may reasonably request. Such cooperation
shall include, without limitation, the granting by First Union to the Company
and the Trust, and such person or persons as the Company and the Trust may
request, access to those persons on First Union's 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 adequate information in
sufficient detail to enable the Company and the Trust to decide whether to
extend the Exchange Offer. First Union shall prepare a final list of all persons
whose tenders were accepted, the aggregate principal amount of Original Capital
Securities tendered, the aggregate principal amount of Original Capital
Securities accepted and deliver said list to the Company and the Trust.
p. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by First Union as to the date and the time
of receipt thereof and shall be preserved by First Union as to the 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 First Union preserves other
5
records pertaining to the transfer of securities, or one year, whichever is
longer, and thereafter shall be delivered by First Union to the Company and the
Trust. First Union shall dispose of unused Letters of Transmittal and other
surplus materials by returning them to the Company or the Trust.
2. COMPENSATION.
$____ will be payable to First Union in its capacity as Exchange Agent;
provided, that First Union reserves the right to receive reimbursement from the
Company for any reasonable out-of-pocket expenses incurred as Exchange Agent in
performing the services described herein.
3. INDEMNIFICATION.
a. The Company and the Trust hereby agree to protect, defend, indemnify and
hold harmless First Union against and from any and all costs, losses,
liabilities, taxes, expenses (including reasonable counsel fees and
disbursements) and claims imposed upon or asserted against First Union on
account of any action taken or omitted to be taken by First Union in connection
with its acceptance of or performance of its duties under this Agreement and the
documents related thereto as well as the reasonable costs and expenses of
defending itself against any claim or liability arising out of or relating to
this Agreement and the documents related thereto. This indemnification shall
survive the release, discharge, termination and/or satisfaction of this
Agreement. Anything in this Agreement to the contrary notwithstanding, neither
the Company nor the Trust shall be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of First Union's
bad faith, gross negligence or willful misconduct. In no case shall the Company
or the Trust be liable under this indemnification agreement with respect to any
claim against First Union until the Company and the Trust shall be notified by
First Union, by letter, of the written assertion of a claim against First Union
or of any other action commenced against First Union, promptly after First Union
shall have received any such written assertion or shall have been served with a
summons in connection therewith; provided, that, First Union's failure to give
such notice shall not excuse the Company or the Trust from its obligations
hereunder. The Company 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
Company and the Trust so elect, the Company or the Trust may assume the defense
of any pending or threatened action against First Union in respect of which
indemnification may be sought hereunder with counsel reasonably acceptable to
First Union; provided that the Company and the Trust shall not be entitled to
assume the defense of any such action if the named parties to such action
include the Company or the Trust and First Union and representation of the
parties by the same legal counsel would, in the reasonable opinion of counsel
for First Union , be inappropriate due to actual or potential conflicting
interests between them. In the event that the Company or the Trust shall assume
the defense of any such suit with counsel reasonably acceptable to First Union,
the Company or the Trust, as applicable, shall not be liable for the fees and
expenses incurred by First Union of any counsel retained by First Union
subsequent to such assumption of defense by the Company or the Trust.
6
b. The Company agrees to indemnify and hold harmless the Trust from and
against any and all losses, claims, damages and liabilities whatsoever, as due
from the Trust under this Section.
4. TAX INFORMATION.
The Company or 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 Company and the Trust understand that they may be required,
in certain instances, to deduct 31% with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital 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.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
6. NOTICES. 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, telecopy, 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 Company:
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx
President and Chief Executive Officer
If to the Trust:
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx
Administrative Trustee
7
If to First Union:
One Xxxxxx Square
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xx Xxxxxx, Corporate Trust Administration
With a copy to:
Xxxxxxxx, Xxxxxx & Finger, P.A.
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Confirmation: (000) 000-0000
Attention: Xxxxxxx Xxxxxx Damon, Esquire
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 to the foregoing, the parties hereto expressly agree that no holder
of 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
so long as the economic or legal substance of the agreements contained herein is
not affected in any manner adverse to any party. Upon such determination that
any term or provision or the application thereof is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
8
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience or 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.
11. TERMINATION. This Agreement shall terminate upon the earlier 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 First Union from the Company and the Trust stating that this Agreement is
terminated, (c) one year following the date of this Agreement, or (d) the time
and date on which this Agreement shall be terminated by mutual consent of the
parties hereto.
Kindly indicate your willingness to act as Exchange Agent and First Union's
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and First Union's acceptance shall constitute a
binding agreement among First Union, the Company and the Trust.
Very truly yours,
PREMIER BANCORP, INC.
By: ____________________________
Name:
Title:
PBI CAPITAL TRUST
By: ____________________________
Administrative Trustee
Accepted and agreed to as of the date first
written above:
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
By: _______________________________________
Name:
Title:
9
