EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
_____________, 0000
Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Ladies and Gentlemen:
Imperial Capital Trust I, a Delaware statutory business trust
(the "Trust"), proposes to make an offer (the "Exchange Offer") to exchange up
to $75,000,000 aggregate liquidation amount of its 9.98% Series B Capital
Securities (liquidation amount $1,000 per Capital Security) (the "New Capital
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like liquidation amount of its outstanding
9.98% Series A Capital Securities (liquidation amount $1,000 per Capital
Security) (the "Old Capital Securities"), of which $75,000,000 aggregate
liquidation amount is outstanding. The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated
____________, 1997 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all record holders of
the Old Capital Securities. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Prospectus.
The Trust hereby appoints 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 Trust on
or about _____________, 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Old Capital Securities to accept
the Exchange Offer, and contains certain instructions with respect to the
Exchange Offer.
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 or
Imperial Bancorp (the "Company") may extend the Exchange Offer (the "Expiration
Date"). Subject to the terms and conditions set forth in the Prospectus, the
Trust and the Company expressly reserve the right to extend the Exchange Offer
from time to time and may extend the Exchange Offer by giving oral (promptly
confirmed in writing) or written notice to you no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date.
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The Trust and the Company expressly reserve the right to amend
or terminate the Exchange Offer, and not to accept for exchange any Old 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
caption "The Exchange Offer -- Conditions to the Exchange Offer." The Trust or
the Company will give oral (promptly confirmed in writing) or written notice of
any amendment, termination or nonacceptance to you as promptly as practicable.
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" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way 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
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 or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you will identify
such preexisting account to be used in the Exchange Offer, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old Capital Securities by causing the
Book-Entry Transfer Facility to transfer such Old Capital Securities into your
account in accordance with the Book-Entry Transfer Facility's procedures for
such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of book-entry
transfers into your account at the Book-Entry Transfer Facility and any Agent's
Message or other documents delivered or mailed to you by or for holders of the
Old Capital Securities to ascertain whether: (i) the Letters of Transmittal and
any such other documents are duly executed and properly completed in accordance
with instructions set forth therein and (ii) the Old 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
certificates for Old 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.
4. With the approval of the Trust or the Chairman of the
Board, the Co-Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer or the Secretary of the Company (such approval, if given
orally, to be confirmed in writing) or any other party designated by the Trust
or such officer of the Company in writing, you are authorized to waive any
irregularities in connection with any tender of Old Capital Securities pursuant
to the Exchange Offer.
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5. Tenders of Old Capital Securities may be made only as set
forth in the section of the Prospectus captioned "The Exchange Offer --
Procedures for Tendering Old Capital Securities" or in the Letter of Transmittal
and Old 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, Old
Capital Securities which the Trust or any other party designated by the Trust in
writing 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 with respect to any Old Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old 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 to
act is submitted; and
(c) from persons other than the registered
holder of Old Capital Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Capital Securities to the transfer agent for split-up and
return any untendered Old Capital Securities to the holder (or to 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
promptly confirmed in writing) of the Company's and Trust's acceptance, promptly
after the Expiration Date, of all Old Capital Securities properly tendered and
you, on behalf of the Trust, will exchange such Old Capital Securities for New
Capital Securities and cause such Old Capital Securities to be canceled.
Delivery of New Capital Securities will be made on behalf of the Trust by you at
the rate of $1,000 liquidation amount of New Capital Securities for each $1,000
liquidation amount of the Old Capital Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in writing) of acceptance
of said Old Capital Securities by the Trust; provided, however, that in all
cases, Old Capital Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Capital
Securities (or confirmation of book-entry transfer into your account at
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the Book-Entry Transfer Facility), a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees (or
in lieu thereof an Agent's Message) and any other required document. You shall
issue New Capital Securities only in denominations of $1,000 or any integral
multiple thereof, provided that no New Capital Securities will be issued except
in an aggregate amount of at least $100,000.
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 Capital Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date.
10. The Company and the Trust shall not be required to
exchange any Old 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 Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing) by the Company
or the Trust to you.
11. If, pursuant to the Exchange Offer, the Company or the
Trust does 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, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Old Capital Securities (or effect the appropriate book-entry transfer
of the unaccepted Old Capital Securities), and return any related required
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 Capital Securities or
for unaccepted Old Capital Securities shall be forwarded by (a) first-class
mail, return receipt requested, under a blanket surety bond protecting you, the
Trust and the Company 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 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 person 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 Old Capital Securities, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offer; provided, however, that in no way will your general duty to act
in good faith be discharged by the foregoing;
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(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 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 easonably 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 the 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 or oral instructions from the Trust or any officer of the Company
with respect to the Exchange Offer;
(f) shall not advise any person tendering Old
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 Old Capital Securities; and
(g) may consult with your counsel with respect
to any questions relating to your duties and responsibilities and the written
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 accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Company, the Trust or their counsel (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, or such other forms as may
be approved from time to time by the Company or the Trust, 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 or 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 Secretary of the Company at: 0000 Xxxxx Xx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
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16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Trust, the Company and Weil,
Gotshal & Xxxxxx LLP, counsel for the Company and the Trust, and such other
person or persons as they may request, daily, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the liquidation amount
of the Old 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 and items covered by Notices of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
Company and the Trust or any such other person or persons as the Company or the
Trust request from time to time prior to the Expiration Date of such other
information as they, or he reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Company, the Trust and such
person as the Company or 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 list of persons who failed to
tender or whose tenders were accepted and the aggregate liquidation amount of
Old Capital Securities not tendered or Old Capital Securities not accepted and
deliver said list to the Company and the Trust at least seven days prior to the
Expiration Date. You shall also 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 Company.
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 Company.
18. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $5,000 and you shall be entitled to reimbursement
of your reasonable expenses (including reasonable fees and expenses of your
counsel, which fees are expected under normal circumstances to be not in excess
of $5,000) incurred in connection with the Exchange Offer. The obligations under
this Section 18 shall constitute joint and several obligations of the Trust and
the Company.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal attached hereto and further acknowledge that you have
examined each of them to the extent necessary to perform your obligations
hereunder. 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.
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20. 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,
arising out of or in connection with the acceptance or administration of your
duties hereunder, including, without limitation, in connection with 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 Old 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 Old Capital Securities, provided, however, that the
Company and 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, willful breach of this Agreement, willful misconduct or bad faith.
In no case shall the Company and the Trust be liable under this indemnity with
respect to any claim against you unless the Company and the Trust shall be
notified by you, by letter 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
commencement of action. 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 and the Trust
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company and the Trust shall assume the defense of any such suit,
the Company and the Trust shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company and the
Trust shall retain counsel reasonably satisfactory to you to defend such suit.
You shall not compromise or settle any such action or claim without the consent
of the Company and the Trust.
21. 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.
22. 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 instrument.
23. 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.
24. 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.
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25. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company or the Trust: With a copy to:
Imperial Bancorp Weil, Gotshal & Xxxxxx
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx Attention: Xxxxxx X. Block
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
00. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18 and 20 shall survive the termination of this
Agreement. Except as provided in Section 17, upon any termination of this
Agreement, you shall promptly deliver to the Company any 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.
27. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Exchange Agent Agreement
and confirm the arrangements herein provided by signing and returning the
enclosed copy.
IMPERIAL BANCORP
By:
----------------------------
Xxxxxx X. Xxxxxx
Executive Vice President
IMPERIAL CAPITAL TRUST I
By:
----------------------------
Xxxxxxx X. Xxxxx
Administrative Trustee
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK
By:
-------------------------
Xxxxxxx Xxxxxxxx
Senior Trust Officer
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