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EXHIBIT 99.3
April __, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Firstar Capital Trust I, a Delaware statutory business trust (the
"Issuer") proposes to make an offer (the "Exchange Offer") to exchange up to
$150,000,000 aggregate liquidation amount of its 8.32% Series B Capital
Securities (liquidation amount $1,000 per Capital Security) (the "New Capital
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like liquidation amount of its
outstanding 8.32% Series A Capital Securities (liquidation amount $1,000 per
Capital Security) (the "Old Capital Securities"), of which $150,000,000
aggregate liquidation amount is outstanding. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
_________, 1997 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all record holders of
the Old Capital Securities. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuer on or
about _____________, 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Old Capital Securities to accept
the Exchange Offer, and contains certain instructions with respect to the
Exchange Offer.
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The Exchange Offer shall expire at 5:00 p.m., New York City time, on
March __, 1997 or on such later date or time to which the Issuer or Firstar
Corporation (the "Company") may extend the Exchange Offer (the "Expiration
Date"). Subject to the terms and conditions set forth in the Prospectus, the
Issuer and the Company expressly reserve 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 no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date.
The Issuer and the Company expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old Capital
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "Conditions to the Exchange Offer." The Issuer or the Company will
give oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance 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" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that 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 Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you will identify
such pre-existing account to be used in the Exchange Offer, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book- entry delivery of the Old Capital Securities by causing the
Book-Entry Transfer Facility to
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transfer such Old Capital Securities into your account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of book-entry
transfers into your account at the Book-Entry Transfer Facility and any Agent's
Message or other documents delivered or mailed to you by or for holders of the
Old Capital Securities to ascertain whether: (i) the Letters of Transmittal
and any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and (ii) the Old Capital
Securities have otherwise been properly tendered. In each case where the
Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Old Capital Securities are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the Issuer or the Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer or the Secretary of
the Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by the Issuer or such officer of the Company in writing,
you are authorized to waive any irregularities in connection with any tender of
Old Capital Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as set
forth in the section of the Prospectus captioned "The Exchange Offer --
Procedures for Tendering Old Capital Securities" or in the Letter of
Transmittal and Old Capital Securities shall be considered properly tendered to
you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Capital
Securities which the Issuer or any other party designated by the Issuer in
writing shall approve as having been properly tendered shall be considered to
be properly
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tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Issuer with respect to any Old Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are
registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on
the Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority to so act is
submitted; and
(c) from persons other than the registered holder of Old
Capital Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Capital Securities to the transfer agent for split-up and
return any untendered Old Capital Securities to the holder (or to such other
person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
1. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer will notify you (such notice if given orally, to be
promptly confirmed in writing) of the Issuer's acceptance, promptly after the
Expiration Date, of all Old Capital Securities properly tendered and you, on
behalf of the Issuer, will exchange such Old Capital Securities for New Capital
Securities and cause such Old Capital Securities to be canceled. Delivery of
New Capital Securities will be made on behalf of the Issuer by you at the rate
of $1,000 liquidation amount of New Capital Securities for
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each $1,000 liquidation amount of Old Capital Securities tendered promptly
after notice (such notice if given orally, to be promptly confirmed in writing)
of acceptance of said Old Capital Securities by the Issuer; provided, however,
that in all cases, Old Capital Securities tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates for
such Old Capital Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or in lieu thereof an Agent's Message) and any other
required document. You shall issue New Capital Securities only in
denominations of $1,000 or any integral multiple thereof.
2. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
3. The Company and the Issuer shall not be required to exchange
any Old Capital Securities tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company and the
Issuer not to exchange any Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing) by the Company
or the Issuer to you.
4. If, pursuant to the Exchange Offer, the Issuer does not accept
for exchange all or part of the Old Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "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 return those certificates for unaccepted Old
Capital Securities (or effect the appropriate book-entry transfer of the
unaccepted Old Capital Securities), and return any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
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5. All certificates for reissued Old Capital Securities or for
unaccepted Old Capital Securities shall be forwarded by (a) first- class mail,
return receipt requested, under a blanket surety bond protecting you, the
Issuer 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 such certificates.
6. 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.
7. 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 Old
Capital Securities, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer; provided,
however, that in no way will your general duty to act 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 or the Issuer 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;
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(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 the 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 or
oral instructions from the Issuer or any officer of the Company with respect to
the Exchange Offer;
(f) shall not advise any person tendering Old Capital Securities
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old Capital
Securities; and
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written 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
accordance with such written opinion of such counsel.
1. You shall take such action as may from time to time be
requested by the Company, the Issuer or their counsel (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, or such other
forms as may be approved from time to time by the Company or the Issuer, 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 or the Issuer 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 Secretary of the
Company at: 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
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2. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Issuer, the Company and Xxxxx &
Xxxx LLP, counsel for the Company and the Issuer, and such other person or
persons as they may request, daily, and more frequently, if reasonably
requested, up to and including the Expiration Date, as to the principal amount
of the Old Capital Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and, given cumulative totals to the items properly received and items
improperly received and items covered by Notices of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
Company and the Issuer or any such other person or persons as the Company or
the Issuer request from time to time prior to the Expiration Date of such other
information as they, or he reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Company, the Issuer and
such person as the Company or the Issuer 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 and the Issuer shall
have received information in sufficient detail to enable them to decide whether
to extend the Exchange Offer. You shall prepare a list of persons who failed
to tender or whose tenders were not accepted and the aggregate principal amount
of Old Capital Securities not tendered or Old Capital Securities not accepted
and deliver said list to the Company and the Issuer at least seven days prior
to the Expiration Date. You shall also prepare a final list of all persons
whose tenders were accepted, the aggregate principal amount of Old Capital
Securities tendered and the aggregate principal amount of Old Capital
Securities accepted and deliver said list to the Company.
3. 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 Company.
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4. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $5,000 and you shall be entitled to reimbursement of your
expenses (including fees and expenses of your counsel, which fees are expected
under normal circumstances to be not in excess of $5,000) incurred in
connection with the Exchange Offer. The obligations under this Section 18
shall constitute joint and several obligations of the Issuer and the Company.
5. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal attached hereto and further acknowledge that you have
examined each of them to the extent necessary to perform your obligations
hereunder. 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.
6. The Company and the Issuer jointly and severally agree to
indemnify and hold you harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorney's fees,
arising out of or in connection with the acceptance or administration of your
duties hereunder, including, without limitation, in connection with 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 Capital Securities reasonably believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Capital Securities; provided, however, that the
Company and the Issuer shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of your
negligence, willful breach of this Agreement, willful misconduct or bad faith.
In no case shall the Company and the Issuer be liable under this indemnity with
respect to any claim against you unless the Company and the Issuer shall be
notified by you, by letter or cable or by facsimile confirmed by letter, of the
written assertion of a claim
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against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or commencement of action. The
Company and the Issuer shall be entitled to participate at their own expense in
the defense of any such claim or other action, and, if the Company and the
Issuer so elect, the Company and the Issuer shall assume the defense of any
suit brought to enforce any such claim. In the event that the Company and the
Issuer shall assume the defense of any such suit, the Company and the Issuer
shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company and the Issuer shall retain
counsel reasonably satisfactory to you to defend such suit. You shall not
compromise or settle any such action or claim without the consent of the
Company and the Issuer.
7. 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.
8. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
9. 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.
10. 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.
11. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing
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(including facsimile) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company or the Issuer:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000)000-0000
Attention: Secretary
With a copy to:
Xxxxx & Wood LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000/60
Attention: Xxxxxxxx Xxxxxxxx
12. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Paragraphs 18 and 20 shall survive the
termination of this Agreement. Except as provided in Section 17, upon any
termination of this Agreement, you shall promptly deliver to the Company any
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.
13. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
FIRSTAR CORPORATION
By: _____________________________
Name:
Title:
FIRSTAR CAPITAL TRUST I
By: _____________________________
Name:
Title:
Accepted as of the date
first above written:
The Chase Manhattan Bank
By:_________________________________
Name:
Title:
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