EXHIBIT 99.3
March , 1997
EXCHANGE AGENT AGREEMENT
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The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
BankBoston Capital Trust II, a trust formed under the laws of the
State of Delaware (the "Trust") proposes to make an offer (the "Exchange
Offer") to exchange its 7 3/4% Series A Capital Securities (Liquidation
Amount $1,000 per Capital Security) (the "Old Securities") for its 7 3/4%
Series B Capital Securities (Liquidation Amount $1,000 per Capital Security)
(the "New Securities"). All of the beneficial interests represented by
common securities of the Trust are owned by Bank of Boston Corporation, a
Massachusetts corporation (the "Corporation"). The terms and conditions of
the Exchange Offer as currently contemplated are set forth in a prospectus,
dated March , 1997 (the "Prospectus"), 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 Trust 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 Trust on or
about March , 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 (i) the delivery of certificates for Old
Securities tendered in connection therewith and (ii) the book entry transfer
of Securities to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time,
on April , 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 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 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 Trust
will give oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Old Securities to you promptly after any
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 in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth herein; provided, however, that
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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 system 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 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 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 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 any 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 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 -- 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 Securities
which 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 Old Securities received subsequent to 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 such person's 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 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 Trust, will
exchange such Old Securities for New Securities and cause such Old Securities
to be canceled. Delivery of New Securities will be made on behalf of the
Trust by you at the rate of $1,000 principal amount of New Securities for
each $1,000 principal amount of the corresponding series 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 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) with any required signature
guarantees and any other required documents. You shall issue New Securities
only in denominations of $1,000 or any integral multiple thereof. Old
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 Old Capital Securities are tendered for exchange in part, the untendered
principal 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, Old 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 Old 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 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 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 promptly after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old 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 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 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 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 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,
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 Administrative Trustee of the Trust or from any
Designated Officer of the Corporation;
(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 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 (as defined in the Prospectus) or such other forms as may
be approved 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: Xxxxxx X. Xxxx,
Esq.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxx X. Xxxx, Esq. 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) 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 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 of 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 to extend the Exchange Offer. You shall prepare
a final list of all persons whose tenders were accepted, the aggregate
principal amount of Old Securities tendered, the aggregate principal amount
of Old Securities accepted and deliver said list to the Trust promptly after
the Expiration Date.
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 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 Trust at the address set forth below for
notices.
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 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. (a) The Trust covenants and agrees 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
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
Securities; provided, however, that the Trust shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your 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 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 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 such claim. 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 additional counsel
thereafter retained by you so long as you consent to the Trust's retention of
counsel, which consent may not be unreasonably withheld; 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
written opinion of counsel to you, be inappropriate due to actual or
potential conflicting interests between them. It is understood that the
Trust shall not be liable under this paragraph for the fees and expenses of
more than one legal counsel for you. In the event that the Trust shall
assume the defense of any such suit, the Trust shall not thereafter be liable
for the fees and expenses of any counsel retained by 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
the Trust and its trustees 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 Trust understands that you are required in
certain instances to deduct 31% with respect to interest paid on the New
Securities and proceeds from the sale, exchange, redemption or retirement of
the New Securities from 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 notify the Trust of the amount of any transfer taxes
payable in respect of the exchange of Old Securities and, upon receipt of
written approval from the Trust, 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 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
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 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.
25. 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.
26. 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.
27. 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.
28. 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 Trust:
BankBoston Capital Trust II
000 Xxxxxxx Xxxxxx 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
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
29. 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 Trust any certificates for Securities, funds or
property then held by you as Exchange Agent under this Agreement.
30. 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.
BANKBOSTON CAPITAL TRUST II
By:
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Name: Xxxxxxxx X. XxXxxxxxxxxx
Title: Administrative Trustee
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
Name:
Title:
SCHEDULE I
FEES
