EXHIBIT 99.5
___________, 1997
EXCHANGE AGENT AGREEMENT
------------------------
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Corporate Trust Services Division
Ladies and Gentlemen:
Equitable of Iowa Companies, an Iowa corporation (the "Company"), and
Equitable of Iowa Companies Capital Trust II, a Delaware statutory business
trust (the "Trust"), propose to make an offer (the "Exchange Offer") to
exchange up to $50,000,000 aggregate liquidation amount of the Trust's 8.424%
Series B Capital Securities due April 1, 2027 (the "New Securities"), which
have been registered under the Securities Act of 1933, as amended, for a like
aggregate liquidation amount of the Trust's outstanding 8.424% Series A
Capital Securities due April 1, 2027 (the "Old Securities"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated April 24, 1997 (the "Prospectus") and in the related Letter
of Transmittal, proposed to be distributed to all record holders of the Old
Securities. The Old Securities and the New Securities are collectively
referred to herein as the "Securities."
The Company and the Trust hereby appoint The First National Bank of
Chicago to act as exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. References hereinafter to "you" shall refer to The First
National Bank of Chicago.
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 (or in the case of book entry securities, the
ATOP system) is to be used by the holders of the Old Securities to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Old Securities tendered in connection therewith.
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 9:00 A.M., New York City time, on the
business day following the previously scheduled Expiration Date.
The Company and the Trust expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old
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 and the Trust 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
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 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
Securities by causing the Book-Entry Transfer Facility to transfer such Old
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 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 Securities, and any
book-entry confirmations (as defined in the Prospectus) received by you with
respect to Old 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 that such
book-entry confirmations are in due and proper form and contain the
information required to be set forth therein; (ii) the Old Securities have
otherwise been properly tendered; (iii) the Old Securities are tendered only
in integral multiples of $1,000 in aggregate liquidation amount or integral
multiples of $1,000 in excess thereof; 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 Old Securities shall be made by the Company or the Trust, whose
determination shall be final and binding. 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 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 President, Senior Vice President,
Executive Vice President, or any Vice President of the Company or an
Administrative Trustee of the Trust (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 Securities pursuant to the Exchange Offer.
5. Tenders of Old 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 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 Securities which
the President, Senior Vice President, Executive Vice President, or any Vice
President of the Company or an Administrative Trustee of the Trust 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 and the Trust with respect to any Old
Securities tendered for exchange in accordance with the terms of the Exchange
Offer as soon as possible after 5:00 p.m. New York City time, on the
Expiration Date and accept their instructions with respect to disposition of
such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old 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 Securities
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Old Securities to the transfer agent for split-up and return any untendered
Old 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 or the Trust will notify you (such notice if
given orally, to be confirmed in writing) of its acceptance, promptly after
the Expiration Date, of all Old Securities properly tendered and you, on
behalf of the Company and the Trust, will exchange such Old Securities for
New Securities and cause such Old Securities to be cancelled. Delivery of
New Securities will be made on behalf of the Company and the Trust by you at
the rate of $1,000 aggregate liquidation amount of New Securities for each
$1,000 aggregate liquidation amount of Old Securities tendered promptly after
notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old Securities by the Company and the Trust; provided,
however, that in all cases, Old Securities tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates for
such Old 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) or an Agent's Message in lieu
thereof, with any required signature guarantees and any other required
documents. You shall issue New Securities only in denominations of $1,000 in
Liquidation Amount or integral multiples 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 Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company and the Trust shall not be required to exchange any Old
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 Securities tendered shall be given (and confirmed in
writing) by the Company or 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 Old 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 Securities (or effect appropriate book-entry transfers),
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 certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by (a) first-class
certified mail, return receipt requested under a blanket surety bond
protecting you and the Company and the Trust from loss or liability arising
out of the non-receipt or non-delivery of such certificates, (b) by
registered mail insured separately for the replacement value of each of such
certificates, or (c) by appropriate book-entry transfer.
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) 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 and the Trust;
(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 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 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 or an Administrative Trustee of
the Trust;
(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 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 Securities.
15. You shall take such action as may from time to time be requested by
the Company or the Trust or their respective 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 and 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 Company and the Trust, Attention: Secretary.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Secretary of the Company and
the Trust 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 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 and the Trust 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 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 it to decide whether to extend the Exchange Offer. You shall prepare
a final list of all persons whose tenders were accepted, the aggregate
liquidation amount of Old Securities tendered, the aggregate liquidation
amount of Old Securities accepted and deliver said list to the Company and
the Trust.
17. Any Letters of Transmittal and Notices of Guaranteed Delivery which
are received by the Exchange Agent 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, or one year, whichever is longer,
and thereafter shall be delivered by you to the Company and the Trust. You
shall dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company or the Trust.
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 its subsidiaries or affiliates pursuant to
any loan or credit agreement with you or for compensation owed to you
hereunder or for any other matter.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. 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.
21. The Company and the Trust covenant and agree to indemnify and hold
you harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable 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 Securities reason
ably 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
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 bad faith, gross negligence or
willful misconduct. 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 cable 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 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 pend
ing or threatened action against you in respect of which indemnification may
be sought hereunder with counsel reasonably acceptable to you, in which case
the Company or the Trust, as applicable, shall not thereafter be liable under
this paragraph for the fees and disbursements of legal counsel retained by
you; 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 you and representation of the parties by the
same legal counsel would, in your opinion, be inappropriate due to actual or
potential conflicting interests between them. It is understood that neither
the Company nor the Trust shall be liable under this paragraph for the fees
and disbursements of more than one legal counsel for you. In the event that
the Company or the Trust shall assume the defense of any such suit with
counsel reasonably acceptable to you, the Company or the Trust, as
applicable, shall not therewith be liable for the fees and expenses of any
counsel retained by you.
Without the prior written consent of the Company and the Trust, you will
not settle, compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which indemnification
could be sought in accordance with the indemnification provisions of this
Agreement (whether or not you, the Company or the Trust or any of their
directors, officers and controlling persons is an actual or potential party
to such claim, action or proceeding), unless such settlement or consent
includes an unconditional release of the Company and the Trust and their
directors, officers and controlling persons from all liability arising out of
such claim, action or proceeding.
22. 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 and the Trust understand 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.
23. 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 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 Old Securities; provided, however, that you shall reimburse the
Company or the Trust 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.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
Iowa applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles.
25. 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 limiting the
foregoing, the parties hereto expressly agree that no holder of Old
Securities or New Securities shall have any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
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.
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 or the Trust:
Equitable of Iowa Companies
000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxx Xxxxxx, XX 00000-0000
Attention: Secretary
If to the Exchange Agent:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Services Division
30. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company or the Trust 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.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
EQUITABLE OF IOWA COMPANIES
By:_____________________________
Name: __________________________
Title: _________________________
EQUITABLE OF IOWA COMPANIES CAPITAL TRUST II
By:_____________________________
Name:___________________________
Title: Administrative Trustee
Accepted as of the date first above written:
THE FIRST NATIONAL BANK OF CHICAGO,
as Exchange Agent
By:_____________________________
Name: __________________________
Title: _________________________
SCHEDULE I
THE FIRST NATIONAL BANK OF CHICAGO
FEE SCHEDULE
EXCHANGE AGENT SERVICES
EQUITABLE OF IOWA COMPANIES CAPITAL TRUST II
I. Exchange Agency
A fee for the receipt of exchanged 8.424% Series A Capital Securities of
Equitable of Iowa Companies Capital Trust II will be charged at $6.50 per
Letter of Transmittal or Agent's Message as defined in the Prospectus. The
total charge will be subject to a minimum of $2,000 and maximum of $5,000.
This fee covers examination and execution of all required documentation,
receipt of transmittal letters, reporting as required to the Secretary of the
Company and other parties and communication with DTC.
II. Miscellaneous
Fees for services not specifically covered in this schedule will be
assessed in amounts commensurate with the services rendered.
