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EXHIBIT 99.3
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FORM OF EXCHANGE AGENT AGREEMENT
______________, 2000
Wilmington Trust Company,
as Property Trustee of Sky Financial Capital Trust I
Corporate Trust Administration
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Sky Financial Capital Trust I, a business trust formed under the laws
of the State of the Delaware (the "Trust"), proposed to make an offer (the
"Exchange Offer") to exchange any and all of its outstanding 9.34% Capital
Securities, Series A (Liquidation Amount $1,000 per Capital Security) (the
"Original Capital Securities") for its 9.34% Capital Securities, Series B
(Liquidation Amount $1,000 per Capital Security) (the "Exchange Capital
Securities"). All of the beneficial interests represented by common securities
of the Trust are owned by Sky Financial Group, Inc., an Ohio corporation (the
"Corporation"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated __________, 2000 (as the same
may be amended or supplemented from time to time, the "Prospectus"), to be
distributed to all record holders of the Original Capital Securities. A copy of
the Prospectus is attached hereto as Exhibit A. The Original Capital Securities
and the Exchange Capital Securities are collectively referred to herein as the
"Securities." Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of
the Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients to be used in connection with the Exchange Offer are attached
hereto as Exhibit B.
The Trust hereby appoints the Property Trustee to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to the Property Trustee.
The Exchange Offer is expected to be commenced by the Trust on or about
__________, 2000. 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 Original Capital Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Original
Capital Securities tendered in connection therewith and (ii) the book-entry
transfer of Securities to the Exchange Agent's account.
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The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_____________, 2000 or on such later date or time to which the Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Trust expressly reserves the right to extend
the Exchange Offer from time to time by giving oral (to be 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 Trust expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Original 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 will give you
prompt oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities.
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 Original Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer as soon as practicable, and any financial
institution that is a participant in the Book-Entry Transfer Facility's system
may make book-entry delivery of the Original Capital Securities by causing the
Book-Entry Transfer Facility to transfer such Original 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 Original Capital Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any other
documents received by you from or for holders of the Original Capital Securities
to ascertain whether: (i) on their face 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 Original 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 Original 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 such tendering holders 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.
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______________, 2000
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4. With the approval of an Administrative Trustee of the Trust or any
person designated in writing by the Corporation (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by any such Administrative Trustee or Designated Officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Original Capital Securities pursuant to the Exchange Offer.
5. 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 - Procedures for Tendering Original Capital Securities," and
Original 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, Original
Capital Securities that any Administrative Trustee of the Trust or Designated
Officer of the Corporation 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 and the Corporation with respect to any
Original Capital Securities received subsequent to the Expiration Date and
accept their instructions with respect to disposition of such Original Capital
Securities.
7. You shall accept tenders:
(a) in cases where the Original 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 such person's authority to so act is
submitted; and
(c) from persons other than the registered holder of
Original Capital Securities provided that customary
transfer requirements are satisfied.
You shall accept partial tenders of Original Capital
Securities where so indicated and as permitted in the Letter of Transmittal and
deliver certificates or Original Capital Securities to the transfer agent for
division and return any untendered Original 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 Trust will notify you (such notice, if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Original Capital Securities properly tendered and you, on behalf of the Trust,
will exchange such Original Capital Securities for Exchange Capital Securities
provided to you by or on behalf of the Trust and cause such Original Capital
Securities to be canceled. Delivery of Exchange Capital Securities will be made
on behalf of the Trust by
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you at the rate of $1,000 liquidation amount of Exchange Capital Securities for
each $1,000 liquidation amount of the corresponding series of Original Capital
Securities tendered promptly after notice (such notice, if given orally, to be
confirmed in writing) of acceptance of said Original Capital Securities by the
Trust; provided, however, that in all cases, Original Capital Securities
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Original Capital 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) with any required signature guarantees and any other required
documents. The Trust shall issue Exchange Capital Securities only in
denominations of $1,000 or any integral multiple thereof. Original Capital
Securities may be tendered in whole or in part in denominations of $100,000 and
integral multiples of $1,000 in excess thereof, provided that if any Original
Capital Securities are tendered for exchange in part, the untendered liquidation
amount thereof must be $100,000 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, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Trust shall not be required to exchange any Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Trust not to exchange any Original
Capital Securities tendered shall be given orally (and confirmed in writing) by
the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Original 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 promptly after the expiration or termination of
the Exchange Offer return those certificates of Original Capital Securities not
accepted for exchange (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 them.
12. All certificates for reissued Original Capital Securities,
unaccepted Original Capital Securities or Exchange Capital Securities shall be
forwarded: (a) by first-class certified mail, return receipt requested, under a
blanket surety bond at the direction and expense of the Corporation protecting
you 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 by
you at the expense of the Corporation, protecting you, the Corporation and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates; or (c) by effectuating appropriate book-entry transfer.
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13. You are not authorized to pay or offer 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 in the section of the
Prospectus captioned "The Exchange Offer," the Letter
of Transmittal or herein or as may be subsequently
agreed to in writing by you 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 Original Capital Securities or
Exchange Capital Securities represented thereby
deposited with you or issued 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 or the Letter of
Transmittal or any other disclosure materials
delivered in connection therewith;
(c) shall not be obligated to take any legal action
hereunder; if, however, you determine to take any
legal action hereunder, and, where the taking of such
action might, in your judgment, subject or expose you
to any expense or liability, you shall not be
required to act unless you shall have been furnished
with an indemnity satisfactory to you;
(d) may rely on, and be fully authorized and protected in
acting or failing to act upon any certificate,
instrument, opinion, notice, letter, telegram, telex,
facsimile transmission or other document or security
delivered to you and 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, 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 authorized and protected in
acting or failing to act upon the written, telephonic
and oral instructions with respect to any matter
relating to you acting as Exchange Agent covered by
this Agreement (or supplementing or qualifying any
such actions) of officers of the Corporation;
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(g) may consult with counsel satisfactory to you,
including counsel for the Trust, 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, provided that you shall promptly notify the
Corporation of any action taken or omitted by you in
reliance upon such advice or opinion;
(h) are not authorized, and shall have no obligation, to
pay any brokers, dealers or soliciting fees to any
person; and
(i) shall not advise any person tendering Original
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 Original Capital Securities.
15. You shall take such action as may from time to time be requested by
the Trust or its counsel or any Designated Officer of the Corporation (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 and provided to you from time to time by the
Trust or the Corporation, 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 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 Trust,
Attention: X. Xxxxxxx Xxxxxx, Jr.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to X. Xxxxxxx Xxxxxx, Jr. of the Trust,
and such other person or persons as the Trust or the Corporation may request,
daily (and more frequently during the week immediately preceding the Expiration
Date and if otherwise requested by the Corporation or the Trust) up to and
including the Expiration Date, as to the aggregate liquidation amount of
Original 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 Trust or the Corporation or any such other person or persons,
upon oral request made from time to time on or prior to the Expiration Date,
such other information as it or such person reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the Trust
or the Corporation, and such person as the Trust or the Corporation 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
Trust or the Corporation shall have received information in sufficient detail to
enable it to decide whether
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______________, 2000
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to extend the Exchange Offer. You shall prepare a final list of all persons
whose tenders were accepted, the aggregate liquidation amount of Original
Capital Securities tendered, the aggregate liquidation amount of Original
Capital Securities accepted and deliver said list to the Trust promptly after
the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery received
by you 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 your preserve other records pertaining to the transfer of securities.
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
Trust, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in
connection with your services hereunder, within thirty days following receipt by
the Corporation of an itemized statement of such expenses and fees in reasonable
detail.
20. (a) The Trust covenants and agrees to indemnify and hold
you (which for purposes of this paragraph shall
include your directors, officers and employees)
harmless in your individual capacity and in your
capacity as Exchange Agent hereunder from and against
any and all loss, liability, cost, damage, expense
and claim, including but not limited to reasonable
attorneys' fees and expenses, incurred by you as a
result of, arising out of or in connection with the
performance by you of your duties under this
Agreement or the compliance by you with the
instructions set forth herein or delivered hereunder;
provided, however, that the Trust shall not be liable
for indemnification or otherwise, or hold you
harmless, for any loss, liability, costs, damage,
expense or claim arising out of your bad faith, gross
negligence or willful misconduct. In no case shall
the Trust be liable under this indemnity with respect
to any claim against you unless 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 notice of commencement of
action. The Trust shall be entitled to participate at
its own expense in the defense of any such claim or
other action, and, if the Trust so elects, the Trust
may assume the defense of any suit brought to enforce
any claim such; provided, that the Trust shall not be
entitled to assume the defense of any such action if
the named parties to such action include both the
Trust and you and representation of both parties by
the same legal counsel would, in the
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written opinion of counsel to you, be inappropriate
due to actual or potential conflicting interests
between them. In the event that the Trust shall
assume the defense of any such suit or threatened
action in respect of which indemnification may be
sought hereunder, the Trust shall not be liable for
the fees and expenses of any counsel thereafter
retained by you. The Trust shall not be liable under
this paragraph for the fees and expenses of more than
one legal counsel for you.
(b) You agree that, without the prior written consent of
the Trust (which consent shall not be unreasonably
withheld), you will not settle, compromise or consent
to the entry of 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 or the Trust or any of its
trustees or controlling persons is an actual or
potential party to such claim, action or proceeding),
unless such settlement, compromise or consent
includes an unconditional release of Trust and its
trustees and controlling persons from all liability
arising out of such claim, action or proceeding.
21. The Trust understands that you are required in certain instances to
deduct 31% of the amounts to be paid 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 Tax payer Identification Number or required certification. You
will remit any such funds to the Internal Revenue Service in accordance with
applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes of
which you have actual knowledge are payable in respect of the exchange of
Original Capital Securities.
23. 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, and no other person shall
have any rights hereunder.
24. This Agreement may be executed in one 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.
25. 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.
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26. 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.
27. Unless otherwise provided herein, all notices, requests and other
communications to any part hereunder shall be in writing (including facsimile or
similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth below:
If to the Trust: Sky Financial Capital Trust I
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: X. Xxxxxxx Xxxxxx, Jr.
If to the Exchange Agent: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust
Administration -
Sky Financial Capital Trust I Exchange
Offer
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 20 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Trust any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
29. 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.
SKY FINANCIAL CAPITAL TRUST I
By:
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X. Xxxxxxx Xxxxxx, Jr.,
Administrative Trustee
By:
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Xxxxx X. Xxxxxxxx,
Administrative Trustee
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Wilmington Trust Company
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By:
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Xxxxxxx X. Xxxxx,
Administrative Trustee
Accepted as of the date first above written:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Property
Trustee, as Exchange Agent
By:
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Name:
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Title:
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Wilmington Trust Company
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SCHEDULE I
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FEES
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Wilmington Trust Company
Corporate Trust Department
SCHEDULE OF FEES
FOR
SKY FINANCIAL CAPITAL TRUST I
9.34% CAPITAL SECURITIES, SERIES B
1. Exchange Agent $_____________
Covers review of the Letter of Transmittal, the Exchange Agent
Agreement and other related documentation; establishment of accounts and systems
link with depositories; operational and administrative charges and time spend in
connection with the review, receipt and processing of Letters of Transmittal,
Agent's Messages and Notices of Guaranteed Delivery.
Note: The fees set forth in this schedule are subject to review of
documentation and our internal credit and conflict review. The fees are also
subject to change should circumstances warrant. Out-of-pocket expenses and
disbursements, including reasonable counsel fees, incurred in the performance of
disbursements, including reasonable counsel fees, incurred in the performance of
our duties will be added to the billed fees. We may place orders to buy/sell
financial instruments with outside broker-dealers that we select, as well as
Wilmington Trust Company or its affiliates. These transactions (for which normal
and customary spreads will be earned in addition to the charges quoted above)
will be executed on a riskless principal basis solely for your account(s) and
without recourse to us or our affiliates. If you choose to invest in any mutual
fund, Wilmington Trust Company and/or our affiliates may earn service
fees/expenses associated with these funds as disclosed in the mutual fund
prospectus provided to you, in addition to the charges quoted above. We will
provide periodic account statements describing transactions executed for your
account(s). Trade confirms will be available upon your request at no additional
charge. If a deal should fail to close for reasons beyond our control, we
reserve the right to charge our acceptance plus reimbursement for legal fees
incurred.
Fees for any services not specifically covered in this or other
applicable schedules will be based on an appraisal of services rendered.
