EXHIBIT 99.3
____________
__________, 1997
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Provident Capital Trust I, a Delaware statutory business trust (the
"Trust"), and Provident Bancorp, Inc., an Ohio corporation, as Sponsor (the
"Company"), propose to make an offer (the "Exchange Offer") to exchange an
aggregate liquidation amount of the Trust's 8.60% Capital Securities due
November 27, 2026 (the "Old Capital Securities") for a like aggregate
liquidation amount of the Trust's 8.60% Capital Securities due November 27,
2026 (the "New Capital Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
__________, 1997 (as the same may be amended or supplemented from time to
time, 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".
Each of the Company and the Trust hereby appoints The Bank of New
York 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.
The Exchange Offer is expected to be commenced by the Company and
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 instructions with
respect to the delivery of certificates for Old Capital Securities tendered
in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time,
on _________, 1997 unless the Exchange Offer is extended by the Trust (the
"Expiration Date"). Any delay in acceptance, extension, termination, or
amendment of the Exchange Offer, will be followed promptly by oral or written
notice thereof to the Exchange Agent and by making a public announcement
thereof, and such announcement in the case of an extension will be made no
later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date.
The Trust expressly reserves the right to amend or terminate the
Exchange Offer, and the right 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."
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" 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 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, 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 and
certificates for Old Capital Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Old 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 prior approval of any Trustee of the Trust (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such Trustee 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 Trustee of the Trust 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 with respect to any Old Capital
Securities received subsequent to the Expiration Date and accept the Trust's
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 so to 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 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 its acceptance, promptly after the Expiration Date,
of all Old Capital Securities properly tendered, and you, on behalf of the
Trust, will exchange such Old Capital Securities for New Capital Securities
and cause such Old Capital Securities to be cancelled. Delivery of New
Capital Securities will be made on behalf of the Trust by you at the rate of
$1,000 principal amount of New Capital Securities for each $1,000 principal
amount of 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
and any other required documents. You shall issue New Capital Securities
only in denominations of $1,000 or any integral multiple 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 prior to the
Expiration Date.
10. The Trust 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.
11. If, pursuant to the Exchange Offer, 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 appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
12. All certificates for reissued Old Capital Securities,
unaccepted Old Capital Securities or for New Capital Securities shall be
forwarded by (a) first-class certified mail, return receipt requested under a
blanket surety bond protecting you and the Trust 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) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing by you and the Trust;
(b) 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;
(c) 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;
(d) 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 you and reasonably
believed by you in good faith to be genuine and to have been signed by
the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
you shall in good faith believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Trust;
(g) may consult with your counsel 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
(h) 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.
15. You shall take such action as may from time to time be
requested by the Trust or its 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 (as defined in the
Prospectus) or such other forms as may be approved from time to time by 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 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's Investor
Relations Department, Linn Street, 855E, Xxxxxxxxxx, Xxxx 00000, telephone
number (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Trust and such person or
persons as it 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 number of 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. In addition, you will also inform, and cooperate in making
available to, the Trust or any such other person or persons upon oral request
made from time to time prior to the Expiration Date of such other information
as it or he or she reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Trust and such person as 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 Trust shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange
Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Capital Securities tendered,
the aggregate principal amount of Old Capital Securities accepted and deliver
said list to the Trust.
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 Trust.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by
the Trust, the Company or any of its subsidiaries or affiliates pursuant to
any loan or credit agreement with you or for compensation owed to you
hereunder.
19. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. 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.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and
expenses, arising out of or in connection with 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 in good faith 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 gross negligence or willful
misconduct. 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 be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company shall retain counsel satisfactory to you to defend such suit.
22. You 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.
23. You shall deliver or cause to be delivered, in a timely
manner, to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Capital Securities, your check in
the amount of all transfer taxes so payable, and the Company shall reimburse
you for the amount of any and all transfer taxes payable in respect of the
exchange of Old Capital Securities; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment
of any such transfer taxes, at such time as such refund is received by you.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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 in the Prospectus, in the
case of the Company and the Trust, and set forth below in the case of the
Exchange Agent:
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Paragraphs 17, 19, 21 and 23 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 then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
PROVIDENT CAPITAL TRUST I
By:______________________
Name:
Title: Regular Trustee
PROVIDENT BANCORP, INC.
By:______________________
Name:
Title:
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:____________________
Name:
Title:
SCHEDULE I
FEES
