May __, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Capital Trust I (the "Trust") proposes to make an offer (the
"Exchange Offer") to exchange its 8.71% Series A Capital Securities (the "Old
Capital Securities") for its registered 8.71% Series B Capital Securities (the
"New Capital Securities"), respectively. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
May , 1997 (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 "Capital Securities" or
the "Securities".
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 instructions with respect to the delivery of certificates
for Old Capital Securities tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
June __, 1997 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 and Xxxxxx Corporation (the "Corporation")
expressly reserve the right to extend the Exchange Offer from time to time and
may extend the Exchange Offer by given oral (confirmed in writing) or written
notice to you before 5:00 p.m., New York City
time, on the business day following the previously scheduled Expiration Date.
The Trust and the Corporation expressly reserve the right to delay,
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 captions "The Exchange Offer -- Terms of the Exchange Offer" and
"---Conditions to the Exchange Offer". The Trust or the Corporation will give to
you as promptly as practicable oral (confirmed in writing) or written notice of
any delay, amendment, termination or nonacceptance.
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 herein and such duties which are necessarily incidental
thereto.
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
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.
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4. With the approval of the Chairman of the Board, the President, or
any Vice President of the Corporation (such approval, if given orally, promptly
to be confirmed in writing) or any other party designed by such 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 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 Chairman of the Board, the President or any Vice President
of the Corporation or any other party designated by any such officer in writing
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, promptly shall be confirmed
in writing).
6. You shall advise the Corporation 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 so 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 indentured 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.
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8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (such notice if given orally, promptly
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
Trust, 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 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, promptly to be 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 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 document. You shall issue New Capital Securities only in aggregate
liquidation amounts of $1,000 or any integral multiple 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 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 Trust not to exchange any Old Capital
Securities tendered shall be given (such notices if given orally, promptly shall
be confirmed in writing) by the Trust or the Corporation to you.
11. If, pursuant to the Exchange Offer, 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 captions "The Exchange Offer -- Terms of the Exchange
Offer" and "--- 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 them.
12. All certificates for reissued Old Capital Securities,
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unaccepted Old Capital Securities or for New Capital Securities shall be
forwarded by (a) first-class mail, postage pre-paid under a blanket surety bond
protecting you and the Trust 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 each 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 persons 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 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;
(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 Trust or the Corporation 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 reasonably 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 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
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written notice or oral instructions from any officer of the Corporation or any
trustee of the Trust 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;
(g) may consult with counsel 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 reliance thereon.
15. You shall send to all holders of Old Capital Securities a copy
of the Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery,
as defined in the Prospectus, and such other documents (collectively, the
"Exchange Offer Documents") as may be furnished by the Trust or the Corporation
to commence the Exchange Offer and take such other action as may from time to
time be requested by the Trust or the Corporation or its counsel (and such other
action as you may reasonably deem appropriate) to furnish copies of the Exchange
Offer Documents or such other forms as may be approved from time to time by the
Trust or the Corporation, to all holders of Old Capital Securities and 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 Corporation 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 Corporation, Attention: Xxxxxxx X.
Xxxxxx, Esq., at the Corporation's offices at 0000 Xxx Xxxx, Xxxx Xxxxx,
Xxxxxxxx 00000, telephone (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxxx of the Corporation,
and such other person or persons as the Trust may request in writing, not later
than 7:00 p.m., New York City time, each business day, and more frequently if
reasonably 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 Trust or any such other person or persons as the Corporation
requests in writing from time to time prior to the Expiration Date, of such
other
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information as it reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Corporation and such person as 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 Corporation 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 and the aggregate
principal amount of Old Capital Securities accepted and deliver said list to the
Corporation.
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
customarily preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus materials in
accordance with your customary procedures.
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
Corporation, 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 such compensation and reimbursement of out-of-pocket expenses as is
set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (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 Corporation, on behalf of itself and the Trust, agrees to
indemnify and hold you harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorneys' fees and
expenses, arising out of or in connection with your appointment as Exchange
Agent and the performance of your duties hereunder, including, without
limitation, any act, omission, delay or refusal made by you in
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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 neither the Trust nor the Corporation shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your negligence, willful misconduct or bad faith.
22. 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 Corporation 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 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.
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 insure to
the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
24. 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.
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.
26. 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.
27. 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,
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addressed to it, at its address or telecopy number set forth below:
If to the Trust or the Corporation:
Xxxxxx Corporation
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Facsimile:
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
Assistant Treasurer
Global Trust Services
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days follow the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Corporation any certificates for Old Capital Securities, 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.
29. 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.
XXXXXX CAPITAL TRUST I
By:________________________________
Name:
Title: Administrative Trustee
XXXXXX CORPORATION
By:________________________________
Name:
Title:
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By:_________________________
Name:
Title:
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XXXXXX XXXXXXX XXXXX I
EXCHANGE AGENCY
FEE SCHEDULE
Flat Fee...............................................$2,500.00
Out-Of-Pocket Expenses
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses (not to exceed $1,500),
facsimile, stationary, postage, telephone, overnight courier and messenger
costs, all of which shall be paid by the Corporation.
