EXCHANGE AGENT AGREEMENT
Exhibit 99.6
[ ], 2009
Attention: Corporate Trust Administration
Ladies and Gentlemen:
American International Group, Inc. (the “Company”) proposes to make an offer (the “Exchange
Offer”) to exchange up to $3,250,000,000 of its 8.250% Notes Due 2018 (the “New Notes”), which have
been registered under the Securities Act of 1933, as amended (the “Securities Act”), for
$3,250,000,000 of its outstanding 8.250% Notes Due 2018 (the “Old Notes”), which have not been
registered under the Securities Act. The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated [ ], 2009 (the “Prospectus”), and a Letter
of Transmittal, a copy of which is attached as Annex A to the Prospectus (the “Letter of
Transmittal”), proposed to be distributed to all record holders of the Old Notes. The Old Notes
and the New Notes are collectively referred to herein as the “Notes.”
The Company hereby appoints The Bank of New York Mellon 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 Mellon. The Automated Tender Offer Program (“ATOP”) of The
Depository Trust Company (“DTC”) is to be used by the holders of the Old Notes to accept the
Exchange Offer. The Letter of Transmittal contains instructions with respect to the delivery of Old
Notes tendered in connection therewith.
The Exchange Offer shall commence on [ ], 2009 (the “Effective Time”) and shall
expire at 5:00 p.m., New York City time, on [ ], 2009 or on such subsequent 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 giving oral (promptly
confirmed in writing) or written notice to you before 5:00 p.m., New York City time, on the
previously scheduled Expiration Date. If the Exchange Offer is extended, then the term “Expiration
Date” shall mean the latest date and time to which the Exchange Offer is extended.
The Company expressly reserves the right to amend the Exchange Offer or to delay acceptance of
Old Notes, or to terminate the Exchange Offer if, in the Company’s sole judgment, any of the
conditions of the Exchange Offer specified in the Prospectus under the caption “The Exchange Offer
— Conditions to the Exchange Offer” shall not have been satisfied. The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, delay or termination to you as
promptly as practicable. 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,” as specifically set forth in the
Letter of Transmittal or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the Old Notes at DTC to
facilitate book-entry tenders of the Old Notes through DTC’s ATOP for the Exchange Offer within
two business days after the date of the Prospectus, and any financial institution that is a
participant in DTC’s systems may make
book-entry delivery of the Old Notes by causing DTC to transfer such Old Notes into your
account in accordance with DTC’s procedure for such transfer.
3. From and after the Effective Time, you are hereby authorized and directed to accept and
to examine each of the Letters of Transmittal and confirmation of book-entry transfer into your
account at DTC 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 (or the instructions from DTC (the
“DTC Transmissions”)) contain the proper information required to be set forth therein and any
such other documents (including a Notice of Guaranteed Delivery, substantially in the form
attached hereto as Exhibit B (the “Notice of Guaranteed Delivery”)) are duly executed
and properly completed in accordance with instructions set forth therein; and (ii) that
book-entry confirmations are in due and proper form and contain the information required to be
set forth therein. In each case where the Letter of Transmittal or any other document has been
improperly completed or executed (or any DTC Transmission is not in due and proper form or omits
required information) or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the Holders of the need for fulfillment of
all requirements. If such condition is not promptly remedied by the Holder, you shall report
such condition to the Company and await its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and withdrawal of any Old Notes
tendered or delivered shall be determined by the Company, in its sole discretion.
4. You are authorized to request that any person tendering Old Notes provide you with such
additional documents as you or the Company deems appropriate. You are hereby authorized and
directed to process withdrawals of tenders to the extent withdrawal thereof is authorized by the
Exchange Offer.
5. The Company reserves the absolute right (i) to reject any or all tenders of any
particular Old Note determined by the Company not to be in proper form or the acceptance or
exchange of which may, in the opinion of Company’s counsel, be unlawful and (ii) to waive any of
the conditions of the Exchange Offer or any defects, irregularities or conditions to the tender
of any particular Old Note, and the Company’s interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and Notice of Guaranteed Delivery and the
instructions set forth therein) will be final and binding.
6. With the approval of the Chief Executive Officer, Chief Financial Officer or Treasurer,
of the Company (such approval, if given orally, to be promptly confirmed in writing) or any
other officer of the Company designated by the Chief Executive Officer (each an “Authorized
Officer”), you are authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
7. Tenders of Old Notes 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,” 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 Section 7, Old Notes which an Authorized Officer
shall approve as having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
8. You shall advise the Company with respect to any Old Notes received subsequent to the
Expiration Date and accept the Company’s written instructions with respect to disposition of
such Old Notes.
9. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company
will notify you (such notice, if given orally, to be promptly 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 New Notes and cause such Old Notes to be
cancelled and delivered to the Company. Delivery of New Notes will be made on behalf of the
Company by you, and each $1,000 principal amount of Old Notes shall be exchanged for an equal
principal amount of New Notes; provided, however, that New Notes shall only be issued in
denominations of $100,000 and integral multiples of $1,000 in excess thereof. Such delivery
shall be made promptly after notice (such notice if given orally, to be promptly confirmed in
writing) of acceptance of said Old Notes by the Company; provided, however, that in all cases,
Old Notes tendered
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pursuant to the Exchange Offer will be exchanged only after timely receipt by you of
confirmation of book-entry transfer into your account at DTC, a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof) with any required
signature guarantees (or DTC Transmission) and, if applicable, a Notice of Guaranteed Delivery,
and any other required documents.
10. 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.
11. 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 (if given orally, to be promptly confirmed
in writing) by the Company to you.
12. 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” or “The Exchange Offer — Conditions to the Exchange Offer” or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange Offer effect
appropriate book-entry transfer, together with any related required documents that are in your
possession, to the persons who deposited the Old Notes not accepted for exchange.
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 not be liable for any action or omission to act unless the same constitutes
your own negligence, willful misconduct or bad faith, and in no event shall you be liable
to the Company for special, indirect or consequential damages, or lost profits, arising in
connection with this Agreement;
(b) shall have no duties or obligations other than those specifically set forth
herein or in the Prospectus or as may be subsequently agreed to in writing between you and
the Company;
(c) will be regarded as making no representations and having no responsibilities as
to the validity, sufficiency, value or genuineness of any of the Old Notes 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;
(d) shall not be obligated to take any legal action hereunder which might in your
judgment involve any expense or liability, unless you shall have been furnished with
indemnity reasonably satisfactory to you;
(e) may conclusively 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 or
presented by the proper person or persons;
(f) may act upon any tender, statement, request, document, agreement, certificate 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 reasonably believe to be genuine or to have been signed
or presented by the proper person or persons;
(g) may conclusively rely on, and shall be protected in acting upon, written or oral
instructions from any authorized officer of the Company or from Company’s counsel;
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(h) may consult with counsel of your selection 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
(i) shall not make any recommendation as to whether a holder or beneficial owner of
Old Notes should or should not tender such holder’s or beneficial owner’s Old Notes and
shall not solicit any holder or beneficial owner for the purpose of causing such holder or
beneficial owner to tender such holder’s or beneficial owner’s Old Notes.
15. You shall take such action as may from time to time be requested by the Company (and
such additional action as you may deem appropriate) to furnish copies of the Prospectus, Letter
of Transmittal and the Notice of Guaranteed Delivery or such other forms as may be approved from
time to time by the Company to all persons requesting such documents, and to accept and comply
with telephone, mail or facsimile 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 on your
request. All other requests for information relating to the Exchange Offer shall be directed to
the Company, Attention: Director of Investor Relations, 000-000-0000.
16. You shall advise by electronic communication to Xxxxxx Gender, Vice President and
Treasurer (Xxxxxx.Xxxxxx@xxx.xxx), and such other person or persons as the Company may
reasonably request, weekly (and daily during the week immediately preceding the Expiration Date)
up to and including the Expiration Date, as to the principal amount of Old Notes which have been
duly tendered since the previous report and the aggregate amount tendered since the Effective
Date pursuant to the Exchange Offer until the Expiration Date. Such report shall be delivered
in substantially the form attached hereto as Exhibit C. In addition, you will also
inform, and cooperate in making available to, the Company or any such other person or persons as
the Company may request upon oral request (promptly confirmed in writing) made from time to time
prior to the Expiration Date of such other information as they may reasonably request. 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. Within two business days after the Expiration Date, (i) you shall
prepare a final list of all persons whose tenders were accepted, the aggregate principal amount
of Old Notes tendered, the aggregate principal amount of Old Notes accepted, and (ii) you shall
deliver said list to the Company.
17. Each Letter of Transmittal and other documents received by you in connection with the
Exchange Offer shall be stamped by you to show the date of receipt (and you will maintain such
form of record of receipt as is customary for tenders through ATOP) and, if defective, the date
and time the last defect was cured or waived. You shall retain all Letters of Transmittal and
other related documents or correspondence received by the Exchange Agent until the Expiration
Date. You shall return all such material to the Company as soon as practicable after the
Expiration Date.
18. For services rendered as Exchange Agent hereunder, you shall be entitled to such
compensation as shall be agreed in writing between the Company and you.
19. You hereby acknowledge receipt of the Prospectus, the Letter of Transmittal and the
Notice of Guaranteed Delivery. Any discrepancies or questions regarding any Letter of
Transmittal, notice of withdrawal or any other documents received by you in connection with the
Exchange Offer shall be referred to the Company and you shall have no further duty with respect
to such matter; provided, that you shall cooperate with the Company in attempting to resolve
such discrepancies or questions. 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 your
duties, liabilities and indemnification as Exchange Agent.
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20. The Company covenants and agrees to indemnify and hold you harmless against any and all
losses, damages, claims, liabilities, costs or expenses, including attorneys’ fees and expenses,
incurred without negligence, willful misconduct or bad faith on your part, arising out of or in
connection with your appointment and acting thereunder, including without limitation 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, in accepting any tender or effecting any
transfer of Old Notes reasonably believed by you to be authorized, and in reasonably delaying or
refusing to accept any tenders or effect any transfer of Old Notes. In each case, the Company
shall be notified by you, by letter or facsimile transmission, 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 shall have been served with a summons in connection
therewith. The Company shall be entitled to participate at its own expense in the defense of
any such claim or other action and, if the Company so elects, the Company may assume the defense
of any such claim or action and you shall cooperate with the Company in the defense. In the
event that the Company assumes the defense of any such claim or action, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained by you, so long
as you have not determined, in your reasonable judgement, that a conflict of interest exists
between you and the Company.
21. You shall comply with all requirements under the tax laws of the United States imposed
with respect to the activities performed by you pursuant to this Agreement, including filing
with the Internal Revenue Service and Holders Form 1099 reports regarding principal and interest
payments on Notes, compliance with backup withholding and record retention which you have made
in connection with the Exchange Offer, if any. Any questions with respect to any tax matters
relating to the Exchange Offer shall be referred to the Company, and you shall have no duty with
respect to such matter; provided, that you shall cooperate with the Company in attempting to
resolve such questions.
22. You shall notify the Company in a timely manner regarding any transfer taxes that are
payable in respect of the exchange of Old Notes of which you become aware.
23. This Agreement and your appointment as Exchange Agent hereunder shall be governed by,
and construed in accordance with, the laws of the State of New York 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.
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 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 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 Company: | ||||
| American International Group, Inc. | ||||
| 00 Xxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Telephone: | 000-000-0000 | |||
| Facsimile: | 000-000-0000 | |||
| Attention: | Vice President & Treasurer | |||
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| If to the Exchange Agent: | ||||
| The Bank of New York Mellon | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxxxx 0X | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: | 000-000-0000 | |||
| Attention: | Corporate Trust Administration | |||
or to such other address as either party shall provide by notice to the other party.
28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing, Sections 18 and 20 shall survive
the termination of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any funds or property then held by you as Exchange Agent under this
Agreement.
29. You may resign from your duties under this Agreement by giving to the Company thirty
(30) days’ prior written notice, and the Company may terminate your appointment hereunder on
five (5) days’ prior written notice. Any successor exchange agent appointed by the Company
shall be vested with the same powers, rights, duties and responsibilities as if it had been
originally named as Exchange Agent without any further act or deed, but you shall deliver and
transfer to the successor exchange agent any property at the time held by you hereunder and
shall, upon payment of your charges thereunder, execute and deliver any further assurance,
conveyance, act or deed necessary for such purpose as the Company may reasonably request. If an
instrument of acceptance by a successor exchange agent shall not have been delivered to the
Exchange Agent within 30 days after the giving of such notice of removal or resignation, the
Exchange Agent being removed or resigning may petition any court of competent jurisdiction for
the appointment of a successor Exchange Agent. The Company will pay all reasonable expenses in
connection with such petition.
30. You may not transfer or assign or delegate your rights or responsibilities under this
Agreement without the prior written consent of the Company.
31. This Agreement shall be binding and effective as of the date hereof.
32. EACH OF THE COMPANY AND THE EXCHANGE AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
33. In no event shall the Exchange Agent be responsible or liable for any failure or delay
in the performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the
Exchange Agent shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| American International Group, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Accepted as of the date first above written: | ||||
| The Bank of New York Mellon | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
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Exhibit A
PROSPECTUS AND LETTER OF TRANSMITTAL
Exhibit B
NOTICE OF GUARANTEED DELIVERY
Exhibit C
SAMPLE REPORT
DATE:
PREPARED BY:
ADMIN:
PREPARED BY:
ADMIN:
EXCHANGE OFFER. REPORT #
AMERICAN INTERNATIONAL GROUP, INC.
8.250% NOTES DUE 2018
CUSIP: [ ]
PRINCIPAL AMOUNT: $3,250,000,000
8.250% NOTES DUE 2018
CUSIP: [ ]
PRINCIPAL AMOUNT: $3,250,000,000
A T O P S U B M I S S I O N S
| PARTICIPANTS | DTC # | QUANTITY PRESENTED | ||||||
Total DTC Participants Presented = |
||||||||
DTC PARTICIPANTS |
$ | |||||||
GUARANTEE DELIVERY |
$ | |||||||
WITHDRAWALS |
||||||||
Total A/O [date] = |
$ | |||||||
