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EXHIBIT 99(e)
EXCHANGE AGENT AGREEMENT
Dated: _______________________
The First National Bank of Boston
Shareholder Services Division
P. O. Box 1889
Mail Stop: 45-02-53
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
_____________________, a ________________ corporation (the
"Company"), is making exchange offers (hereinafter collectively
referred to, together with any amendment or extensions thereof, as
the "Exchange Offers") to exchange on the basis of one Series D
Preferred Securities for each Series D 7.92% Depositary Shares, and
on the basis of one Series G Preferred Security for each Series G
9.12% Depositary Shares validly tendered and accepted in the
Exchange Offers, upon the terms and subject to the conditions set
forth in the Prospectus, dated _________________ , and in the
related Letters of Transmittal ("Letters of Transmittal"), including
the instructions set forth therein. Definitive copies of each
document being distributed by the Company to its stockholders in
connection with the Exchange Offer have been or will be delivered to
you. All terms used herein shall use definitions contained in the
Letter of Transmital.
The Exchange Offer is being made on ______________, and will
expire at 5:00 p.m., New York City time, on ______________, unless
extended by the Company as provided in the Exchange Offer (the last
date to which the Exchange Offer is extended and on which it expires
is herein referred to as the "Expiration Date").
This will confirm our agreement with you to act as the Exchange
Agent in connection with the Exchange Offer. In such capacity you
will receive and exchange, on behalf of the Company, Depositary
Shares delivered pursuant to the terms of the Exchange Offer. In
carrying out your duties as the Exchange Agent in connection with
the Exchange Offer, you are to act in accordance with the following
instructions:
1. Mail, by first class mail, postage prepaid, within five
business days after ____________ (the "Effective Date"), to each
holder of record of Series D 7.92% Depositary Shares and Series G
9.12% Depositary Shares as of the effective time, the following
material: (a) a copy of the applicable Letter of Transmital
(including the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9) relating to those
shares of Series D 7.92% Depositary Shares and Series G 9.12%
Depositary Shares having hereon the name and address of such record
date holders and (b) a non postage paid envelope addressed to the
Exchange Agent
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for use by such holder in exchanging his or her Series D 7.92% Depositary
Share for Series D Preferred and his or her Series G 9.12% Depositary
Share for Series G Preferred Security.
2. You shall examine the Letters of Transmittal, the
certificates for Shares and the other documents delivered or mailed
to you in connection with exchanges of Depositary Shares to
ascertain whether they are completed and executed in accordance with
the instructions set forth in the Letters of Transmittal. In the
event any Letter of Transmittal has been improperly completed or
executed, or the certificates for Depositary Shares accompanying
such Letter of Transmittal are not in proper form for transfer (as
required by the aforesaid instructions), or if some other
irregularity in connection with any exchange of Depositary Shares
exists, you shall endeavor to cause such action to be taken as is
necessary to correct such irregularity. Determination of all
questions as to the validity, form, eligibility (including
timeliness of receipt) and acceptance of any Depositary Shares
exchanged or delivered shall be determined by you on behalf of the
Company in the first instance, but final decisions on all such
matters shall be made by the Company. The Company will reserve
in the Exchange Offer the absolute right to reject any or all
exchanges of any particular Shares not in appropriate form or the
acceptance of which would, in the opinion of the Company's counsel,
be unlawful and to waive any of the conditions of the Exchange Offer
or any defect or irregularity in the exchange of any Depositary
Shares, and the Company's interpretation of the terms and conditions
of the Exchange Offer will be final.
3. All Depositary Shares must be exchanged in accordance with
the terms and conditions set forth in the Exchange Offer.
4. An exchanging stockholder may withdraw Shares as set forth
in of the Prospectus, in which event you shall, as promptly as
possible after notification of such withdrawal, return such
Depositary Shares to, or in accordance with the instruction of, such
stockholder and such Depositary Shares shall no longer be considered
properly exchanged. All questions as to the form and validity of
notices of withdrawal, including timeliness of receipt, shall be
determined by the Company, whose determination shall be final and
binding.
5. On each business day up to and including the Expiration Date
(as defined in the Prospectus), you shall advise by facsimile
transmission, not later than 5:00 p.m., Boston time, _____________
__________________ and such other persons as either of them may
direct, of the number of Depositary Shares which have been duly
delivered on such day, stating separately the number of Shares
delivered by Guaranty of Delivery pursuant to the Prospectus, the
number of Depositary Shares delivered about which you have questions
concerning validity and the cumulative number of Depositary Shares
delivered through time of such facsimile transmission. You shall
also inform the aforementioned persons, and such other persons as
may be designated by either of them, upon request made from time to
time, of such other information as either of them may
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request, including, without limitation, the names and addresses of
registered holders of exchanged Depositary Shares.
6. Letters of Transmittal or facsimile transmissions submitted
in lieu thereof pursuant to the Prospectus shall be stamped by you
as of the date and time of receipt thereof and preserved by you as
permanent records until you are otherwise instructed by the Company.
You are to match Guarantees of Delivery submitted pursuant to the
Prospectus with the Depositary Share(s) exchanged pursuant thereto.
If so instructed by the Company, you shall telephone Eligible
Institutions (as defined in the Prospectus) which have exchanged a
significant number of shares by means of the aforementioned
procedures to ascertain information in connection therewith.
7. The Company will notify you of, and confirm in writing (if
requested), any extension or amendment of the Exchange Offer.
8. You shall follow and act upon any amendments, modifications
or supplements to these instructions, and upon any further
instructions in connection with the Exchange Offer, any of which may
be given to you by the Company or such other persons as it may
authorize.
9. If, pursuant to the provisions of the Instructions set forth
in the Letter of Transmittal, fewer than all the Depositary Shares
evidenced by any certificate submitted to you are to be exchanged,
you shall, promptly after the Expiration Date, return or cause to be
returned a new certificate for the remainder of Depositary Shares
not being exchanged to, or in accordance with the instruction of,
each of such stockholders who has made a partial exchange of
Depositary Shares deposited with you.
10. If, pursuant to the Exchange Offer, the Company does not
accept the receipt of instructions from an exchanging stockholder,
you shall return the certificates for such Depositary Shares to, or
in accordance with the instructions of, the persons who deposited the
same, together with a letter of notice, in form satisfactory to the
Company, explaining why the deposited Depositary Shares are being
returned.
11. As Exchange Agent you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be
requested of you by the Company with respect to the Exchange
Offer;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any stock certificates or the Depositary
Shares represented thereby deposited with you pursuant to the
Exchange Offer and will not be required and will make no
representations as to the validity, value or genuineness of the
Exchange Offer;
(c) shall not initiate any legal action hereunder about
written approval of the Company and then only upon such
reasonable indemnity as you may request;
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(d) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, facsimile
transmission, telegram or other document, or any security
delivered to you, and reasonably believed by you to be genuine
and to have been signed by the proper party or parties;
(e) may rely on and shall be protected in acting upon
written or oral instructions with respect to any matter relating
to your acting as Exchange Agent specifically covered by this
Agreement, or supplementing or qualifying any such action, of
__________________________ or _______________
___________________;
(f) may consult with counsel satisfactory to you (including
counsel for the Company) 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 accordance with such
advice or opinion of such counsel;
(g) shall arrange for insurance protecting the Company and
yourself against any liability arising out of the loss,
destruction or non-delivery of certificates for any cause; and
(h) shall not at any time advise any person as to the
wisdom of making any exchange pursuant to the Exchange Offer,
the value of the Depositary Shares or as to any other financial
or legal aspect of the Exchange Offer or any transaction related
thereto.
12. It is understood and agreed that the securities, money,
assets or property (the "Property") to be deposited with or received
by you as Exchange Agent from the Company constitute a special,
segregated account, held solely for the benefit of the Company and
stockholders exchanging Depositary Shares, as their interests may
appear, and the Property shall not be commingled with the
securities, money, assets or properties of you or any other person,
firm or corporation. You hereby waive any and all rights of lien,
attachment or set-off whatsoever, if any, against the Property so to
be deposited, whether such rights arise by reason of statutory or
common law, by contract or otherwise.
13. For services rendered as Exchange Agent hereunder, you
shall be entitled to payment as set forth on Exhibit A hereto.
14. The Company covenants and agrees to indemnify and to hold
you harmless against any costs, expenses (including reasonable fees
of your legal counsel), losses or damages, which may be paid,
incurred or suffered by or to which you may become subject, arising
from or out of, directly or indirectly, any claims or liability
resulting from your actions as Exchange Agent pursuant hereto;
provided, that such covenant and agreement does not extend to, and
you shall not be indemnified with respect to, such costs, expenses,
losses and damages incurred or suffered by you as a result of, or
arising out of, your negligence, bad faith, or willful failure to
perform any of your obligations hereunder. In no case will the
Company be liable under this indemnity with
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respect to any claim against you unless, promptly after you have
received any written assertion of a claim or have been served with
summons or other first legal process giving information as to the
nature and basis of the claim, you notify the Company, by letter
or by cable or telex confirmed by letter, of the written assertion
of such claim against you or of any action commenced against you or
of the service of any summons on you, or other first legal process
giving information as to nature and basis of the claim. The Company
will be entitled at any time to assume or to participate at its own
expense in the defense of any such claim. If the Company so elects
at any time after receipt of such notices and agrees in writing that
such claim is a claim for which you are entitled to be indemnified
and held harmless hereunder or if you in such notice request and the
Company agrees, the Company will assume the defense of any suit brought
to enforce any such claim. In the event the Company assumes the defense
of any such suit, the Company may select counsel of its own choosing for
such purpose and the Company will not be liable for the fees and expenses
of any additional counsel thereafter retained by you.
15. This Exchange Agent Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts and shall inure to the benefit of and the obligations
created hereby shall be binding upon the successors and assigns of
the parties hereto.
16. This Exchange Agent Agreement may be executed in separate
counterparts, each of which when executed and delivered shall be an
original, but all such counterparts shall together constitute but
one and the same instrument.
If the foregoing is acceptable to you, please acknowledge
receipt of this letter and confirm the arrangements herein provided
by signing and returning the enclosed copy.
Very truly yours,
By:_____________________
_________
ACCEPTANCE AS OF THE DATE HEREOF:
By:____________________________________
Title:
