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EXHIBIT 99.3
April __, 1997
Form of
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Executive Risk Capital Trust, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), proposes to make an offer
(the "Exchange Offer") to exchange up to $125,000,000 aggregate Liquidation
Amount of its 8.675% 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 8.675% Series A Capital Securities
(Liquidation Amount $1,000 per Capital Security) (the "Old Capital Securities"),
of which $125,000,000 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"), proposed to be distributed
to all record holders of the Old Capital Securities. The Old Capital Securities
and the New Capital Securities are collectively referred to herein as the
"Capital Securities." Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Prospectus.
The Trust 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 Trust 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 (i) the delivery of
certificates for Old Capital Securities tendered in connection therewith and
(ii) the book entry transfer of Capital Securities to the Exchange Agent's
account at the Depository Trust Company ("DTC").
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 or Executive
Risk Inc. (the "Company") may extend the Exchange Offer (the "Expiration
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Date"). Subject to the terms and conditions set forth in the Prospectus, the
Trust and the Company expressly reserve the right to extend the Exchange Offer
from time to time by giving oral (to be confirmed in writing) or written notice
to you no later than 5:00 p.m., New York City time, on the business day
following the previously scheduled Expiration Date.
The Trust 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 "The Exchange Offer -- Conditions to the Exchange Offer." The Trust or
the Company will give oral (to be confirmed in writing) or written notice of any
amendment, termination or nonacceptance of Old Capital Securities to you
promptly 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 DTC (the "Book-Entry Transfer Facility") for purposes of the
Exchange Offer within two business days after the date of the Prospectus, and
any financial institution that is a participant in the Book Entry Transfer
Facility's systems may make book-entry delivery of the Old Capital Securities by
causing the Book- Entry Transfer Facility to 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 (or 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
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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 any Administrative Trustee of the Trust or
any person designated in writing by the Company (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by any such Administrative Trustee or Designated Officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Old Capital Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Old Capital Securities" and Old
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 any Administrative Trustee of the Trust or Designated Officer
of the Company shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally,
shall be confirmed in writing).
6. You shall advise the Trust and the Company with respect to any
Old Capital Securities delivered subsequent to the Expiration Date and accept
their 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 such person's authority to so act is submitted; and
(c) from persons other than the registered holder of Old Capital
Securities provided that customary transfer
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requirements, including payment of 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.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (such notice, if given orally, to be
confirmed in writing) of the Company's and the Trust's acceptance, promptly
after the Expiration Date, of all Old Capital Securities properly tendered and
you, of behalf of the Trust, 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 Trust by you at
the rate of $1,000 Liquidation Amount at maturity of New Capital Securities for
each $1,000 Liquidation Amount at maturity of the Old Capital Securities
tendered promptly after notice (such notice, if given orally, to be confirmed in
writing) of acceptance of said Old Capital Securities by the Trust; 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 an Agent's Message in lieu thereof) and
any other required documents. You shall issue New Capital Securities only in
denominations of $1,000 or any integral multiple thereof. Old Capital Securities
may be tendered in whole or in part in denominations of $100,000 and integral
multiples of $1,000 in excess thereof, provided that if any Old Capital
Securities are tendered for exchange in part, the untendered Liquidation Amount
thereof must be $100,000 or any integral multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company and the Trust shall not be required to exchange any
Old Capital Securities tendered if
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any of the conditions set forth in the Exchange Offer are not met. Notice of any
decision by the Company and the Trust not to exchange any Old Capital Securities
tendered shall be given (such notice, if given orally, shall be confirmed in
writing) by the Company or the Trust to you.
11. If, pursuant to the Exchange Offer, the Company or the Trust
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), 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 Capital Securities, unaccepted
Old Capital Securities or for New Capital Securities shall be forwarded by (a)
first-class mail, return receipt requested, under a blanket surety bond
protecting you, the Trust 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 person 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 Capital Securities represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the Exchange
Offer; 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;
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(c) may 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 act upon any tender, statement, request, agreement or other
instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith reasonably believe
to be genuine or to have been signed or represented by a proper person or
persons;
(e) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any Administrative Trustee of the Trust or
from any Designated Officer of the 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.
15. You shall take such action as may from time to time be requested
by any Administrative Trustee of the Trust, any Designated Officer of the
Company, or Xxxxx Xxxxxxxxxx, counsel for the Company and the Trust, (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 Trust, 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 Trust will furnish you with copies
of such documents at your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention: Xxxxxxx X.
Xxxxx, Esq.
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16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxx, Esq. of the Company,
and such other person or persons as the Trust or the Company may request, daily
(and more frequently during the week immediately preceding the Expiration Date
and if otherwise requested) up to and including the Expiration Date, as to the
Liquidation 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 giving cumulative totals as to 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 Trust or any such other person or persons as
the Company or the Trust requests from time to time prior to the Expiration Date
of such other information as they or such person reasonably request. Such
cooperation shall include, without limitation, the granting by you to the
Company, the Trust and such person as the Company or the Trust 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 Trust 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 Liquidation Amount of Old Capital Securities not tendered or Old
Capital Securities not accepted and deliver said list to the Company and the
Trust 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 Liquidation
Amount of Old Capital Securities tendered and the aggregate Liquidation Amount
of Old Capital Securities 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
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 at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation and reimbursement of reasonable out-of-pocket
expenses as set forth on Schedule I attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined each of them to
the
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extent necessary to perform your duties 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.
20. (a) 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, arising out of or 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 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. In no case shall the Company be liable under this
indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or notice of
commencement of action. The 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 shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such
suit, the Company shall not thereafter be liable for the fees and expenses of
any counsel retained by you so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit; provided that the Company
shall not be entitled to assume the defense of any such suit if the named
parties to such suit include both the Company and you and representation of both
parties by the same legal counsel would, in the written opinion of counsel to
you, be inappropriate due to actual or potential conflicting interests between
them.
(b) You agree that, without the prior written consent of the
Company, you will not settle, compromise or consent to the entry of judgment in
connection with any pending or threatened claim, action, or proceeding in
respect of which indemnification could be sought in
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accordance with the indemnification provisions of this Agreement (whether or not
you or the Company or any of its officers, directors or controlling shareholders
is an actual or potential party to such claim, action or proceeding), unless
such settlement, compromise or consent includes an unconditional release of the
Company and its officers, directors and controlling shareholders from all
liability arising out of such claim, action or proceeding.
21. 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.
22. 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 shall
constitute one and the same agreement.
23. 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.
24. 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 each party thereto. This Agreement may not be modified
orally.
25. 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, at its address or
telecopy number set forth below:
If to the Company or the Trust:
c/o Executive Risk Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy to:
Xxxxx Xxxxxxxxxx
1301 Avenue of the Xxxxxxxx
0
00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. XxxxXxxxxxx, Xx.
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Global Trust Services
26. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 18, 20 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Capital Securities, 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.
27. 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.
EXECUTIVE RISK INC.
By: ______________________________
Name:
Title:
EXECUTIVE RISK CAPITAL TRUST
By: ______________________________
Name:
Title: Administrative
Trustee
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK,
as Exchange Agent
By:___________________________
Name:
Title:
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