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EXHIBIT 99.3
August , 1998
EXCHANGE AGENT AGREEMENT
(THE "AGREEMENT")
The First National Bank of Chicago
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Trenwick Group Inc., a Delaware corporation (the "Company"), proposes to
make an offer (the "Exchange Offer") to exchange up to $75,000,000 aggregate
principal amount of its 6.70% Senior Exchange Notes due April 1, 2003 (the
"Exchange Notes"), which have been registered under the Securities Act of 1933,
as amended, pursuant to a Registration Statement, for a like principal amount of
its outstanding 6.70% Senior Notes due April 1, 2003 (the "Old Notes"). The
terms and conditions of the Exchange Offer, as currently contemplated are set
forth in a prospectus, dated , 1998 (the "Prospectus"), proposed
to be distributed to all record holders of the Old Notes. The Old Notes and the
Exchange Notes collectively are referred to herein as the "Notes" or the
"Securities."
The Company hereby appoints 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 on or about
, 1998. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of certificates for Old Notes
tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
, 1998 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by given
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 expressly reserves the right to delay, amend or terminate the
Exchange Offer, and not to accept for exchange any Old Notes 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 Company 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 Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two (2) 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 Notes by causing the Book-Entry Transfer Facility to transfer such Old
Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
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3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (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 Notes 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 Notes 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 Notes
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 Chairman of the Board or the Vice
President and Treasurer of the Company (such approval, if given orally,
promptly to be confirmed in writing) or any other party designated by such
officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and Old Notes 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 above, Old Notes which
the Chairman of the Board or the Vice President and Treasurer of the Company 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 Company with respect to any Old Notes
delivered subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two (2) or more
names only if signed by all named holders; and
(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 Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any indentured Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and you, on behalf of
the Company, will exchange such Old Notes for Exchange Notes and cause such
Old Notes to be cancelled. Delivery of Exchange Notes will be made on
behalf of the Company by you at the rate of $1,000 principal amount of
Exchange Notes for each $1,000 principal amount of the Old Notes tendered
promptly after notice (such notice if given orally, promptly to be
confirmed in writing) of acceptance of said Old Notes by the Company;
provided, however, that in all cases, Old Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Notes (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 Exchange Notes only in aggregate principal amounts of $1,000 or
any integral multiple thereof.
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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 Notes tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration
Date.
10. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Old Notes
tendered shall be given (such notices if given orally, promptly shall be
confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Notes 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 Notes (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 Notes, unaccepted Old Notes or
for Exchange Notes shall be forwarded by (a) first-class mail, postage
pre-paid under a blanket surety bond protecting you and the Company from
loss or liability arising out of the non-receipt or non-delivery of such
certificates 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 Notes 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 or as to the accuracy or completeness
of the Prospectus; provided, however, that in no way will your general
duty to ask in good faith be discharged by the foregoing;
(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 Company 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 written
notice or oral instructions from any officer of the Company with respect
to the Exchange Offer;
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(f) shall not advise any person tendering Old Notes 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
Notes;
(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 Notes 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 Company to commence
the Exchange Offer and take such other action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Exchange Offer
Documents or such other forms as may be approved from time to time by the
Company, to all holders of Old Notes 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 Company 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: Trenwick Group Inc., Metro Center, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, Vice President
-- Legal Affairs and Secretary. Telephone requests may be directed to
(000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxx X. Xxxxxxxxx of the Company,
and such other person or persons as the Company 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 Notes which have been tendered pursuant to
the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons as the Company requests in writing from time to time
prior to the Expiration Date such other information as it reasonably
requests. Such cooperation shall include, without limitation, the granting
by you to the Company and such person as the Company may request of access
to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the
Company shall have received information in sufficient detail to enable it
to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal
amount of Old Notes tendered and the aggregate principal amount of Old
Notes accepted and deliver said list to the Company.
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 Company, 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 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),
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\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 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 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 Notes 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 Notes; provided, however, that the Company
shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence,
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 Notes your check in the amount of all
transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Old Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer
taxes, at such time as such refund is received by you.
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 (2) 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, addressed to it, as its
address or telecopy number set forth below:
If to the Company:
Trenwick Group Inc.
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
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If to the Exchange Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety (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 Company any certificates for Old Notes, 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.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
TRENWICK GROUP INC.
By:
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Xxxxx X. Xxxxxxx, Xx.
Chairman, President and Chief
Executive Officer
Accepted as the date
first above written:
THE FIRST NATIONAL BANK OF CHICAGO
By:
-------------------------------------------------------------
Name:
Title:
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TRENWICK GROUP INC.
EXCHANGE AGENCY
FEE SCHEDULE
U.S. Dollars)
Flat Fee.................................................... ($ .00
OUT-OF-POCKET EXPENSES
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses, facsimile, stationary, postage,
telephone, overnight courier and messenger costs, all of which shall be paid by
the Company.
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