EXHIBIT (99)(c)
(FORM OF EXCHANGE AGENCY AGREEMENT)
May ___, 1997
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
XXXXXXX XXXXX, INC., a Florida corporation, as Depositor ("Xxxxxxx") and
XXXXXXX CAPITAL I, a trust formed under the laws of the state of Delaware
(the "Trust") hereby appoint THE FIRST NATIONAL BANK OF CHICAGO to act as
exchange agent (the "Exchange Agent") in connection with an exchange offer by
Xxxxxxx and the Trust to exchange up to $300,000,000 aggregate Liquidation
Amount of the Trust's 8.06% Capital Securities due December 1, 2026 (the "New
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like aggregate Liquidation Amount of
the Trust's outstanding 8.06% Capital Securities due December 1, 2026 (the
"Old Securities"). The terms and conditions of the exchange offer are set
forth in a Prospectus dated May ___, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the related Letter
of Transmittal, which together constitute the "Exchange Offer." The
registered holders of the Capital Securities are hereinafter referred to as
the "Holders." Capitalized terms used herein and not defined shall have the
respective meanings assigned thereto in the Prospectus.
The Exchange Offer is expected to be commenced by the Trust on or about
__________, 1997. The Letter of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, the ATOP system) is to be used by the
holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Old
Securities tendered in connection therewith and (ii) the book-entry transfer
of Old Securities to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 p.m. New York City time, on
__________, 1997 or on such later date or time to which the Trust may extend
the Exchange Offer from time to time by giving oral (to be confirmed in
writing) or written notice to the Exchange Agent 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 and Old Securities not theretofore
accepted for exchange, based upon any conditions of the Exchange Offer described
in the Prospectus. The Trust will give oral (to be confirmed in writing) or
written notice of any
amendment, termination or nonacceptance of Old Securities to the Exchange
Agent promptly after any amendment, termination or nonacceptance.
On the basis of the representations, warranties and agreements of
Xxxxxxx, the Trust and the Exchange Agent contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement between
Xxxxxxx, the Trust and the Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
x. Xxxxxxx and the Trust hereby authorize and appoint The First
National Bank of Chicago to act as Exchange Agent in connection with the
Exchange Offer and The First National Bank of Chicago agrees to act as
Exchange Agent in connection with the Exchange Offer. As Exchange Agent, The
First National Bank of Chicago will perform those services as are
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" and as are outlined herein.
x. Xxxxxxx and the Trust acknowledge and agree that The First National
Bank of Chicago has been retained pursuant to this Agreement to act solely as
Exchange Agent in connection with the Exchange Offer, and in such capacity, the
Exchange Agent shall perform such duties in good faith.
c. The Exchange Agent will establish an account with respect to the
Old Securities at The Depository Trust Company ("DTC") for the purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in DTC's system may make
book-entry delivery of the Old Securities by causing DTC to transfer such Old
Securities into the Exchange Agent's account in accordance with DTC's
procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal and
certificates for Old Securities and any other documents delivered or mailed to
the Exchange Agent by or for Holders of the Old Securities, and any book-entry
confirmations (as defined in the Prospectus) received by the Exchange Agent with
respect to 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 the instructions set forth therein and that such
book-entry confirmations are in due and proper form and contain the information
required to be set forth therein, (ii) the Old Securities have otherwise been
properly tendered, and (iii) Holders have provided their correct Tax
Identification Number or required certification. Determination of all questions
as to validity, form, eligibility and acceptance for exchange of any Old
Securities shall be made by Xxxxxxx or the Trust, whose determination shall be
final and binding. In each case where the Letters of Transmittal or any other
documents have been improperly completed or executed or where book-entry
confirmations are not in due and proper form or omit certain information, or any
of the certificates for Old Securities are not in proper form for transfer or
some other irregularity in connection with the tender of the Old Securities
exists, the Exchange Agent will endeavor to advise
the tendering Holders of the irregularity and to take any other action may be
necessary or advisable as to cause such irregularity to be corrected.
Notwithstanding the foregoing, the Exchange Agent shall not incur any
liability for failure to give any such notification.
e. With the approval of any Regular Trustee of the Trust or any person
designated in writing by Xxxxxxx (a "Designated Officer") (such approval, if
given orally, to be confirmed in writing) or any other party designated by
any such Regular Trustee or Designated Officer, the Exchange Agent is
authorized to waive any irregularities in connection with any tender of Old
Securities pursuant to the Exchange Offer.
f. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Old Securities shall be considered properly tendered only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph, Old Securities which any
Regular Trustee or Designated Officer shall approve (such approval, if given
orally, to be confirmed in writing) as having been properly tendered shall be
considered to be properly tendered.
g. The Exchange Agent shall advise Xxxxxxx and the Trust with respect
to any Old Securities received after 5:00 p.m., New York City time, on the
Expiration Date and accept their instructions with respect to disposition of
such Old Securities.
h. The Exchange Agent 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.
The Exchange Agent 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 or Old Securities which have not been accepted by Xxxxxxx and the
Trust 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.
i. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify the Exchange Agent (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 the Exchange Agent, 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 the Exchange Agent at the rate of $1,000 liquidation 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 the Exchange Agent of certificates for such Old Securities (or
confirmation of book-entry transfer into the Exchange Agent's account at
DTC), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or Agent's Message in lieu thereof), with any required
signature guarantees and any other required documents. You shall issue New
Securities only in denominations of $1,000 or any integral multiple thereof.
j. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and 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.
k. 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 Xxxxxxx and the Trust not to exchange any Old
Securities tendered shall be given by Xxxxxxx or the Trust orally (and
confirmed in writing) to the Exchange Agent.
l. If, pursuant to the Exchange Offer, Xxxxxxx and the Trust do not
accept for exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, the Exchange Agent shall promptly after the expiration
or termination of the Exchange Offer return such 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 the Exchange Agent's possession, to the persons who deposited
such certificates.
m. Certificates for reissued Old Securities, unaccepted Old Securities
or New Securities shall be forwarded by (a) first-class certified mail,
return receipt requested under a blanket surety bond obtained by the Exchange
Agent protecting the Exchange Agent, Xxxxxxx and the Trust from loss or
liability arising out of the non-receipt or non-delivery or such certificates
or (b) by registered mail insured by the Exchange Agent separately for the
replacement value of each such certificate.
n. The Exchange Agent is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
commercial bank, trust company or other persons or to engage or use any
person to solicit tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) 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;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of the
certificates for the Old Securities deposited 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;
(iii) shall not be obligated to take any legal action hereunder
which might in the Exchange Agent's reasonable judgment involve any
expense or liability, unless the Exchange Agent shall have been
furnished with reasonable indemnity;
(iv) 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 the Exchange Agent and
reasonably believed by the Exchange Agent to be genuine and to have been
signed by the proper party or parties;
(v) 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
the Exchange Agent believes in good faith to be genuine and to have been
signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written or
oral instructions from any Regular Trustee or Designated Officer;
(vii) may consult with its own counsel with respect to any
questions relating to the Exchange Agent's duties and responsibilities and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by the Exchange Agent hereunder in good faith and in accordance with the
advice or opinion of such counsel;
(viii) shall not advise any person tendering Old Securities pursuant
to the Exchange Offer as to whether to tender or refrain from tendering all
or any portion of its Old Securities or as to the market value, decline or
appreciation in market value of any Old Securities or as to the market
value of the New Securities; and
(ix) The Exchange Agent shall take such action as may from time to
time be requested by Xxxxxxx or the Trust to furnish copies of the
Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery or
such other forms as may be approved from time to time by Xxxxxxx and the
Trust, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the procedures for
accepting (or withdrawing from) the Exchange Offer. Xxxxxxx and the Trust
will furnish you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or
telephone and promptly thereafter confirm in writing to Xxxxxxx and the Trust
and such other persons as Xxxxxxx and the Trust 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, the aggregate
liquidation amount of Old Securities which have been tendered pursuant to the
Exchange Offer and the items received by the Exchange Agent pursuant to the
Exchange Offer and this Agreement, reporting separately and cumulatively as
to items properly received and items improperly received. In addition, the
Exchange Agent will also provide, and cooperate in making available to
Xxxxxxx and the Trust or any such other persons as requested from time to
time, such other information in its possession as Xxxxxxx and the Trust may
reasonably request. Such cooperation shall include, without limitation, the
granting by the Exchange Agent to Xxxxxxx and the Trust, and such persons as
Xxxxxxx and the Trust may request, of access to those persons on the Exchange
Agent's staff who are responsible for receiving tenders, in order to ensure
that immediately prior to the Expiration Date Xxxxxxx and the Trust shall
have received information in sufficient detail to enable Xxxxxxx and the
Trust to decide whether to extend the Exchange Offer. The Exchange Agent
shall prepare a final list of all persons whose tenders were accepted, the
aggregate liquidation amount of Old Securities tendered and the aggregate
liquidation amount of Old Securities accepted and deliver said list to
Xxxxxxx and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and
time of receipt thereof and shall be preserved by the Exchange Agent for a
period of time at least equal to the period of time the Exchange Agent
preserves other records pertaining to the transfer of securities, or one
year, whichever is longer, and thereafter shall be delivered by the Exchange
Agent to Xxxxxxx and the Trust. The Exchange Agent shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to
Xxxxxxx or the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or
right of set-off whatsoever that the Exchange Agent may have respect to funds
deposited with it for the payment of transfer taxes by reasons of amounts, if
any, borrowed by Xxxxxxx or the Trust, of any of its or their subsidiaries or
affiliates pursuant to any loan or credit agreement with the Exchange Agent or
for compensation owed to the Exchange Agent hereunder or for any other matter.
s. The Exchange Agent hereby acknowledges receipt of the Prospectus and
the Letter of Transmittal and the Notice of Guaranteed Delivery and further
acknowledges that it has examined each of them. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal and the Notice of Guaranteed Delivery (as they may be amended or
supplemented from time to time), on the other hand, shall be resolved in
favor of the latter three documents, except with respect to the duties,
liabilities and indemnification of the Exchange Agent which shall be
controlled by this Agreement.
2. COMPENSATION
For services rendered as Exchange Agent hereunder, the Exchange Agent
shall be entitled to such compensation as is set forth on Schedule I attached
hereto.
3. INDEMNIFICATION
a. The Trust hereby agrees to indemnify and hold harmless the Exchange
Agent against and from any and all costs, losses, liabilities and expenses
(including reasonable counsel fees and disbursements) arising out of or in
connection with any act, omission, delay or refusal made by the Exchange
Agent in reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document
reasonably believed by the Exchange Agent to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Old Securities
reasonably believed by the Exchange Agent 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. Anything in this Agreement to the contrary
notwithstanding, neither Xxxxxxx nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of the Exchange Agent's bad faith, gross negligence or
willful misconduct. In no case shall the Trust be liable under this
indemnity with respect to any claim against the Exchange Agent until the
Trust shall be notified by the Exchange Agent, by letter, of the written
assertion of a claim against the Exchange Agent or of any other action
commenced against the Exchange Agent, promptly after the Exchange Agent 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 pending or threatened action 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 incurred
thereafter of any additional counsel retained by the Exchange Agent so long
as the Exchange Agent consents to the Trust's retention of counsel, which
consent may not be unreasonably withheld; provided, however, that the Trust
shall not be entitled to assume the defense of any such action if the named
parties to such action include Xxxxxxx or the Trust and the Exchange Agent
and representation of the parties by the same legal counsel would, in the
written opinion of counsel for the Exchange Agent, be inappropriate due to
actual or potential conflicting interests among them. It is understood that
neither Xxxxxxx nor the Trust shall be liable under this paragraph for the
fees and disbursements of more than one legal counsel for the Exchange Agent.
In the event that the Trust shall assume the defense of any such suit with
counsel reasonably acceptable to the Exchange Agent, the Trust shall not
thereafter be liable for the fees and expenses of any counsel retained by the
Exchange Agent.
b. The Exchange Agent agrees that, without the prior written consent
of the Trust (which consent shall not be unreasonably withheld), it will not
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action or
proceeding in respect of which indemnification could be sought in accordance
with the indemnification provision of this Agreement (whether or not the
Exchange Agent, Xxxxxxx or the Trust or any of its directors, officers and
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 Xxxxxxx or the Trust and its directors, officers and
controlling persons from all liability arising out of such claim, action or
proceeding.
4. TAX INFORMATION
a. The Exchange Agent 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. Xxxxxxx and the Trust understand that the Exchange
Agent is 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. The Exchange Agent shall
notify Xxxxxxx and the Trust of any Holder who has failed to supply such
Taxpayer Identification Number or certification.
b. The Exchange Agent 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, the Exchange Agent 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, its check in the amount of all transfer taxes so payable, and the
Trust shall reimburse the Exchange Agent for the amount of any and all
transfer taxes payable in respect of the exchange of Old Securities;
provided, however, that the Exchange Agent shall reimburse the trust for
amounts refunded to the Exchange Agent in respect of your payment of any such
transfer taxes, at such time as such refund is received by the Exchange Agent.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that state without regard to conflicts of
laws principles.
6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon
receipt) be delivery in person, telecopy, or overnight delivery or by
registered or certified mail (postage prepaid, return receipt requested) to
the applicable party at the address indicated below:
If to Xxxxxxx:
Xxxxxxx Xxxxx, Inc.
00 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
If to the Trust:
c/o Xxxxxxx Xxxxx, Inc.
00 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
If to the Exchange Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Corporate Trust Administration
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their successors and assigns
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. Without limitation to the
foregoing, the parties hereto expressly agree that no holder of Old
Securities or New Securities shall have any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or
more counterparts, and each of such counterparts shall together constitute
one and the same agreement. If any term or other provision of this Agreement
or the application thereof is invalid, illegal or incapable of being enforced
by any rule of law, or public policy, all other provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the agreements contained herein is not affected in any
manner adverse to any party. Upon such determination that any term or
provision or the application thereof is invalid, illegal or unenforceable,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the agreements contained herein may
be performed as originally contemplated to the fullest extent possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included
for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended or modified nor may any provision
hereof by waived except in writing signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written
notice by the Exchange Agent from Xxxxxxx and the Trust stating that this
Agreement is terminated, (c) one year following the date of this Agreement,
or (d) the time and date on which this Agreement shall be terminated by
mutual consent of the parties hereto. Notwithstanding the foregoing,
Paragraphs 2, 3, and 4 shall survive termination of this Agreement.
Kindly indicate the Exchange Agent's acceptance of the foregoing
provisions by signing in the space provided below for that purpose and
returning to Xxxxxxx a copy of this Agreement so signed, whereupon this
Agreement and the Exchange Agent's acceptance shall constitute a binding
agreement between the Exchange Agent, Xxxxxxx and the Trust.
Very truly yours,
XXXXXXX XXXXX, INC.
By:
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer
XXXXXXX CAPITAL I
By:
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Regular Trustee
Accepted and agreed to as of
the date first written above:
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Name:
Title:
