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Exhibit 99.3
___________, 199__
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
___________________________ (the "Company")
proposes to make an offer (the "Exchange Offer") to
exchange its ___________________________ (the "Old
Capital Securities") for its ___________________________
(the "New Capital Securities"). The terms and conditions
of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated ___________, 199__ (the
"Prospectus"), proposed to be distributed to all record
holders of the Old Capital Securities. The Old Capital
Securities and the New Capital Securities are collectively
referred to herein as the "Securities".
The Company hereby appoints The Bank of New York
to act as exchange agent (the "Exchange Agent") in
connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by
the Company on or about _____________, 199_. The Letter
of Transmittal accompanying the Prospectus (or in the
case of book entry securities, the ATOP system) is to be
used by the holders of the Old Capital Securities to accept
the Exchange Offer and contains instructions with respect
to the delivery of certificates for Old Capital Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New
York City time, on _____________, 199__ or on such later
date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the
terms and conditions set forth in the Prospectus, the
Company expressly reserves 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 9:00 A.M., New York City
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time, on the business day following the previously
scheduled Expiration Date.
[The Company expressly reserves 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 Company will give oral (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 good faith and 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"] or as
specifically set forth herein; 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, 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
procedure for such transfer.
3. You are to examine each of the Letters of
Transmittal and certificates for Old 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 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
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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 President, Senior
Vice President, Executive Vice President, or any Vice
President of the Company (such approval, if given
orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are
authorized to waive any irregularities in connection
with any tender of Old Capital Securities pursuant to the
Exchange Offer.
5. Tenders of Old 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
Old 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 President, Senior Vice
President, Executive Vice President, or any Vice
President of the Company 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 Company with respect to
any Old Capital Securities received 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 so to act is submitted;
and
(c) from persons other than the registered
holder of Old Capital Securities provided that customary
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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 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 will
notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly
after the Expiration Date, of all Old Capital Securities
properly tendered and you, on behalf of the Company,
will exchange such Old Capital Securities for New Capital
Securities and cause such Old Capital Securities to be
cancelled. Delivery of New Capital Securities will be
made on behalf of the Company by you at the rate of
$1,000 liquidation amount of New Capital Securities for
each $1,000 liquidation amount of the corresponding
series of Old Capital Securities tendered promptly after
notice (such notice if given orally, to be confirmed in
writing) of acceptance of said Old Capital Securities by
the Company; 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 the Book-Entry Transfer Facility), properly completed
and duly executed Letter(s) of Transmittal (or facsimile
thereof) with any required signature guarantees and any
other required documents. You shall issue New Capital
Securities only in denominations of $100,000 (100 New
Capital Securities) or any integral multiple of $1,000
in excess thereof.
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 prior to the Expiration Date.
10. The Company 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 not to exchange
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any Old Capital Securities tendered shall be given (and
confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the
Company 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 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 such certificates or effected such
book-entry transfer.
12. All certificates for reissued Old Capital
Securities, unaccepted Old Capital Securities or for
New Capital Securities shall be forwarded by
first-class certified mail, return receipt requested
under a blanket surety bond protecting you and the
Company from loss or liability arising out of the
non-receipt or non-delivery 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. If any holder of Old Capital Securities
shall report to you that his or her failure to
surrender Old Capital Securities registered in his or
her name is due to the loss or destruction of a
certificate or certificates, you shall request such
holder (i) to furnish to you an affidavit of loss and,
if required by the Company, a bond of indemnity in an
amount and evidenced by such certificate or certificates
of a surety, as may be satisfactory to you and the
Company, and (ii) to execute and deliver an agreement
to indemnify the Company and you, in such form as is
acceptable to you. The obligees to be named in each
such indemnity bond shall include you and the Company.
You shall report to the Company the names of all
holders of Old Capital Securities who claim that their
Old Capital Securities have been lost or destroyed
and the principal amount of such Old Capital Securities.
15. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other
than those specifically set forth herein or as may be
subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no
representations and having no responsibilities as to the
validity, sufficiency, value or genuineness of any of
the certificates or the Old Capital Securities represented
thereby 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;
(c) shall not be obligated to take any legal
action hereunder which might in your reasonable judgment
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involve any expense or liability, unless you shall have
been furnished with reasonable indemnity;
(d) 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 you and reasonably
believed by you to be genuine and to have been signed by
the proper party or parties;
(e) 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 believe
to be genuine or to have been signed or represented by a
proper person or persons;
(f) may rely on and shall be protected in
acting upon written or oral instructions from any
officer of the Company;
(g) may consult with your counsel with
respect to any questions relating to your duties and
responsibilities and the advice or opinion of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted to be taken by you hereunder in good faith and
in accordance with the advice or opinion of such
counsel; and
(h) 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.
16. You shall take such action as may from time
to time be requested by the Company or its 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 (as
defined in the Prospectus) or such other forms as may be
approved from time to time by the Company, 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 will
furnish you with copies of such documents at your
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request. All other requests for information relating to
the Exchange Offer shall be directed to the Company,
Attention: ____________________.
17. You shall advise by facsimile transmission
or telephone, and promptly thereafter confirm in writing
to _____________________________ of the Company and such
other person or persons as it may request, daily (and
more frequently during the week immediately preceding
the Expiration Date and if otherwise requested) up to
and including the Expiration Date, as to the number of
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. In addition, you will
also inform, and cooperate in making available to, the
Company or any such other person or persons upon oral
request made from time to time prior to the Expiration
Date of such other information as it or he or she
reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Company
and such person as the Company 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 shall have
received information in sufficient detail to enable it
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 Old
Capital Securities tendered, the aggregate principal
amount of Old Capital Securities accepted and deliver
said list to the Company.
18. 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.
19. 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 any of its subsidiaries or
affiliates pursuant to any loan or credit agreement with
you or for compensation owed to you hereunder.
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20. For services rendered as Exchange Agent
hereunder, you shall be entitled to such compensation as
set forth on Schedule I attached hereto.
21. You hereby acknowledge receipt of the
Prospectus and the Letter of Transmittal and further
acknowledge that you have examined each of them. 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.
22. The Company covenants and agrees to
indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any loss, liability,
cost or expense, including attorneys' fees and
expenses, arising out of or in connection with any
act, omission, delay or refusal made by you in
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 shall not be liable for
indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of your
negligence or willful misconduct. In no case shall the
Company be liable under this indemnity with respect to
any claim against you unless the Company 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 notice of commencement
of action. The Company shall be entitled to participate
at its own expense in the defense of any such claim or
other action, and, if the Company so elects, the
Company shall assume the defense of any suit brought
to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses
of any additional counsel thereafter retained by you
so long as the Company shall retain counsel
satisfactory to you to defend such suit.
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23. You 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 understands that
you are required to deduct 31% on payments to holders
who have not supplied their correct Taxpayer
Identification Number or required certification. Such
funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
24. 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 Old Capital Securities, your check in the
amount of all transfer taxes so payable, and the Company
shall reimburse you for the amount of any and all transfer
taxes payable in respect of the exchange of Old 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.
25. 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.
26. 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.
27. 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.
28. This Agreement shall not be deemed or
construed to be modified, amended, rescinded, cancelled
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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29. Unless otherwise provided herein, all
notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or
similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set
forth below:
If to the Company:
___________________________
___________________________
___________________________
Facsimile: __________________
Attention: __________________
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
30. Unless terminated earlier by the parties
hereto, this Agreement shall terminate 90 days following
the Expiration Date. Notwithstanding the foregoing,
Paragraphs 20, 22 and 24 shall survive the termination
of this Agreement. Upon any termination of this
Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held
by you as Exchange Agent under this Agreement.
31. 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.
_______________
By:______________________
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
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SCHEDULE I
FEES
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