EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
_______________ __, 1997
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GreenPoint Financial Corp., a Delaware corporation
("GreenPoint"), and GreenPoint Capital Trust I, a business trust
created under the laws of Delaware (the "Issuer"), are offering
to exchange (the "Exchange Offer"), among other securities, the
9.10% Subordinated Capital Income Securities of the Issuer which
are being registered under the Securities Act of 1933, as amended
(the "New Capital Securities") for a like aggregate Liquidation
Amount of the outstanding 9.10% Subordinated Capital Income
Securities of the Issuer (the "Old Capital Securities" and,
together with the New Capital Securities, the "Capital
Securities"), pursuant to a prospectus (the "Prospectus")
included in a Registration Statement on Form S-4 (File Nos.
________ and, as amended, the "Registration Statement"), filed
with the Securities and Exchange Commission (the "SEC"). The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on
_________________, 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, The Bank of
New York will act as the Exchange Agent (the "Exchange Agent")
for the Exchange Offer. A copy of the Prospectus is attached
hereto as EXHIBIT A. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed
thereto in the Prospectus.
GreenPoint and the Issuer 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."
A copy of each of the form of the letter of
transmittal (the "Letter of Transmittal") and the form of the
notice of guaranteed delivery (the "Notice of Guaranteed
Delivery" and, together with the Letter of Transmittal, the
"Tender Documents") to be used by Holders of Old Capital
Securities to surrender Old Capital Securities in order to
receive New Capital Securities pursuant to the Exchange Offer are
attached hereto as EXHIBIT B.
GreenPoint and the Issuer hereby appoint you to act as
Exchange Agent in connection with the Exchange Offer. In carrying
out your duties as Exchange Agent, you are to act in good faith
and in accordance with the following provisions of this
Agreement:
1. You are to mail the Prospectus and the Tender
Documents to all of the Holders and participants in The
Depository Trust Company ("DTC") system on the day that you are
notified in writing by GreenPoint and the Issuer that the
Registration Statement has become effective under the Securities
Act of 1933, as amended, or as soon as practicable thereafter,
and to make subsequent mailings thereof to any persons who you
have been notified (by DTC or GreenPoint) have become Holders
prior to the Expiration Date and to any persons as may from time
to time be requested by GreenPoint. All mailings pursuant to this
Section 1 shall be by first-class mail, postage prepaid, unless
otherwise specified by GreenPoint or the Issuer. You shall also
accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information
shall relate only to the procedures for tendering Old Capital
Securities in (or withdrawing tenders of Old Capital Securities
from) the Exchange Offer. All other requests for information
relating to the Exchange Offer shall be directed to GreenPoint,
Attention: ___________.
2. You are to examine the Letters of Transmittal and
the Old Capital Securities and other documents delivered to or
received by you, by or for the Holders (including any book-entry
confirmations, as such term is defined in the Prospectus), to
ascertain whether (i) the Letters of Transmittal and any other
Tender Documents are duly executed and properly completed in
accordance with the instructions set forth therein and that the
book-entry confirmations are in due and proper form and contain
the information required to be set forth therein, (ii) the Old
Capital Securities have otherwise been properly tendered, and
(iii) Holders have provided their Tax Identification Number or
required certification. In each case where a Letter of
Transmittal or other document has been improperly executed or
completed or, for any other reason, is not in proper form, or
some other irregularity exists, you will, subject to the
following sentence, take such action as you consider appropriate
to notify the tendering Holder of such irregularity and as to the
appropriate means of resolving the same. Determination of
questions as to the proper completion or execution of the Letters
of Transmittal, or as to the proper form for transfer of the Old
Capital Securities or as to any other irregularity in connection
with the submission of Letters of Transmittal and/or Old Capital
Securities and other documents in connection with the Exchange
Offer, shall be made by the officers of, or counsel for,
GreenPoint and the Issuer at their written instructions or oral
direction confirmed by facsimile. Any determination made by
GreenPoint and the Issuer on such questions shall be final and
binding.
3. At the written request of GreenPoint and the Issuer
or their counsel, you shall notify tendering Holders of Old
Capital Securities in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Capital Securities
to the persons entitled thereto, at the request and expense of
GreenPoint.
4. Tenders of the Old Capital Securities may be made
only as set forth in the Letter of Transmittal and in the section
of the Prospectus entitled "The Exchange Offer." Notwithstanding
the foregoing, tenders which GreenPoint or the Issuer shall
approve in writing as having been properly tendered shall be
considered to be properly tendered. Letters of Transmittal and
Notices of Guaranteed Delivery shall be recorded by you as to the
date and time of receipt and shall be preserved and retained by
you at GreenPoint's expense for six years. New Capital Securities
are to be issued in exchange for Old Capital Securities pursuant
to the Exchange Offer only (i) upon receipt by you prior to the
Expiration Date (or, in the case of a tender pursuant to a Notice
of Guaranteed Delivery as outlined in Instruction 1 of the Letter
of Transmittal, within three New York Stock Exchange trading days
after the Expiration Date of the Exchange Offer), of a completed
Letter of Transmittal, together with the corresponding Capital
Securities certificate, or (ii) upon receipt by you prior to the
Expiration Date, in the event that the Holder is a participant in
the DTC system, of a completed Letter of Transmittal (or an
Agent's Message in lieu thereof), together with book entry
confirmation in accordance with DTC's Automated Tender Offer
Program ("ATOP").
You are hereby directed to establish an account with
respect to the Old Capital Securities at DTC (the "Book Entry
Transfer Facility") within two days after the Effective Date of
the Exchange Offer in accordance with Section 17A(d) of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder. Any financial institution that is a
participant in the Book Entry Transfer Facility system may, until
the Expiration Date, 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 procedure for such transfer established by
the Book Entry Transfer Facility. In every case, however, a
Letter of Transmittal (or a manually executed facsimile thereof)
or an Agent's Message, properly completed and duly executed, with
any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the
Expiration Date or the guaranteed delivery procedures described
in the Exchange Offer must be complied with.
5. Upon the oral or written request of GreenPoint or
the Issuer (with written confirmation of any such oral request
thereafter), you will transmit by telephone, and promptly
thereafter confirm in writing, to ________________________, or
such other persons as GreenPoint or the Issuer may reasonably
request at the address and telephone number set forth in Section
23 hereof, the aggregate number and principal amount of Old
Capital Securities tendered to you and the number and principal
amount of Old Capital Securities properly tendered that day. In
addition, you will also inform the aforementioned persons, upon
oral request made from time to time (with written confirmation of
such request thereafter) prior to the Expiration Date, of such
information as they or any of them may reasonably request.
6. Upon acceptance by GreenPoint and the Issuer of
any Old Capital Securities duly tendered pursuant to the
Exchange Offer (such acceptance if given orally, to be con-
firmed in writing), GreenPoint and the Issuer will cause
New Capital Securities in exchange therefor to be issued
as promptly as possible, and deliver such New Capital
Securities to you. As promptly as possible after the Expira-
tion Date you will deliver such New Capital Securities on
behalf of GreenPoint and the Issuer at the rate of $1,000 (1
Capital Security) principal amount of New Capital Securities for
each $1,000 principal amount of Old Capital Securities tendered.
7. Tenders pursuant to the Exchange Offer are
irrevocable, except that, subject to the terms and the conditions
set forth in the Prospectus and the Letter of Transmittal, Old
Capital Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
8. Notice of any decision by GreenPoint and the Issuer
not to exchange any Old Capital Securities tendered shall be
given to you by GreenPoint or the Issuer either orally (if given
orally, to be confirmed in writing) or in a written notice.
9. If, pursuant to the Exchange Offer, GreenPoint and
the Issuer do 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, upon notice from GreenPoint and
the Issuer (such notice if given orally, to be confirmed in
writing), promptly after the expiration or termination of the
Exchange Offer, return the certificates evidencing 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 such certificates or effected such
book-entry transfer.
10. Certificates for reissued Old Capital Securities,
unaccepted Old Capital Securities or New Capital Securities shall
be forwarded at GreenPoint's expense by first-class mail.
11. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, commercial bank, trust company or other nominee or to
engage or use any person to solicit tenders.
12. If any Holder shall report to you that his or her
failure to surrender Old Capital Securities registered in his or
her name is due to the loss or destruction of a certificate or
certificates, you shall request such Holder (i) to furnish to you
an affidavit of loss and, if required by GreenPoint and the
Issuer, a bond of indemnity in an amount and evidenced by such
certificate or certificates of a surety, as may be satisfactory
to you, GreenPoint and the Issuer, and (ii) to execute and
deliver an agreement to indemnify GreenPoint, the Issuer and you,
in such form as is acceptable to you, GreenPoint and the Issuer.
The obligees to be named in each such indemnity bond shall
include you, GreenPoint and the Issuer. You shall report to
GreenPoint the names of all Holders who claim that their Old
Capital Securities have been lost or destroyed and the principal
amount of such Old Capital Securities.
13. As soon as practicable after the Expiration Date,
you shall arrange for cancellation of the Old Capital Securities
submitted to you or returned by DTC in connection with ATOP.
Such Old Capital Securities shall be canceled and retired by
you in your capacity as Trustee (the "Trustee") under the
Indenture dated June 3, 1997, as amended and supplemented by
the First Supplemental Indenture dated June 3, 1997, governing
the Capital Securities, as you are instructed by GreenPoint and
the Trust (or a representative designated by GreenPoint or the
Trust) in writing.
14. For your services as the Exchange Agent hereunder,
GreenPoint shall pay you in accordance with the schedule of fees
attached hereto as EXHIBIT C. GreenPoint also will reimburse you
for your reasonable and documented out-of-pocket expenses
(including, but not limited to, all reasonable and documented
attorneys' fees and expenses not previously paid to you as set
forth in EXHIBIT C) in connection with your services promptly
after submission to GreenPoint of itemized statements.
15. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than
those specifically set forth herein or in the Exhibits attached
hereto or as may be subsequently requested in writing of you by
GreenPoint or the Issuer and agreed to by you in writing with
respect to the Exchange Offer;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, accuracy, sufficiency,
value or genuineness of any Old Capital Securities deposited with
you hereunder or any New Capital Securities, any Tender Documents
or other documents prepared by GreenPoint or the Issuer in
connection with the Exchange Offer or any signatures or
endorsements other than your own, and will not be required to
make and will not make any representations as to the validity,
sufficiency, value or genuineness of the Exchange Offer or any
other disclosure materials in connection therewith; provided,
however, that in no way will your general duty to act in good
faith be discharged by the foregoing;
(c) 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 an indemnity
reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and
indemnified as provided in Section 16 hereof in acting upon, the
written or oral instructions with respect to any matter relating
to your acting as Exchange Agent specifically covered by this
Agreement or supplementing or qualifying any such action of any
officer or agent of such other person or persons as may be
designated by GreenPoint or the Issuer;
(e) may consult with counsel satisfactory to you,
including counsel for GreenPoint, and the advice 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 advice of such counsel;
(f) shall not at any time advise any person whether to
tender or to refrain from tendering all or any portion of their
Old Capital Securities in the Exchange Offer or as to the market
value or decline or appreciation in market value of any Old
Capital Securities or New Capital Securities; and
(g) shall not be liable for any action which you may
do or refrain from doing in connection with this Agreement except
for your negligence, willful misconduct or bad faith.
16. (a) GreenPoint and the Issuer covenant and agree
to indemnify and hold harmless The Bank of New York and its
officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable documented
expense of any nature (including reasonable documented attorneys'
fees and other fees and expenses) incurred in connection with the
administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best efforts to notify GreenPoint
and the Issuer by letter, or by facsimile confirmed by letter, of
the written assertion of a claim against such Indemnified Party,
or of any action commenced against such Indemnified Party,
promptly after but in any event within 15 days of the date such
Indemnified Party shall have received any such written assertion
of a claim or shall have been served with a summons, or other
legal process, giving information as to the nature and basis of
the claim; provided, further, that failure to so notify
GreenPoint and the Issuer shall not relieve GreenPoint or the
Issuer of any liability which they may otherwise have hereunder
except to the extent that GreenPoint or the Issuer is prejudiced
by such failure to notify. Anything in this Agreement to the
contrary notwithstanding, neither GreenPoint nor the Issuer shall
be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of an
Indemnified Person's gross negligence, bad faith or willful
misconduct. GreenPoint and the Issuer shall be entitled to
participate at their own expense in the defense of any such claim
or legal action and, if GreenPoint or the Issuer so elects,
GreenPoint or the Issuer may assume the defense of any suit
brought to enforce any such claim. In the event GreenPoint or the
Issuer elects to assume such defense, neither GreenPoint nor the
Issuer shall be liable for any fees and expenses thereafter
incurred by such Indemnified Party so long as GreenPoint or the
Issuer shall retain counsel reasonably satisfactory to the
Indemnified Party.
(b) The Bank of New York agrees that, without the
prior written consent of GreenPoint and the Issuer (which consent
shall not be unreasonably withheld), it will not settle,
compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the
indemnification provision of this Agreement (whether The Bank of
New York, GreenPoint or the Issuer or any of their directors,
officers and controlling persons is an actual or potential party
to such claim, action or proceeding), unless such settlement,
compromise or consent includes an unconditional release of
Greenpoint, the Issuer, and their directors, officers and
controlling persons from all liability arising out of such claim,
action or proceeding.
17. This Agreement and your appointment as Exchange
Agent shall be construed and enforced 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 the parties hereto. No other person
shall acquire or have any rights under or by virtue of this
Agreement.
18. The parties hereto hereby irrevocably submit to
the venue and jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan in New York City in any
action or proceeding arising out of or relating to this
Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and
determined in such New York State or federal court. The parties
hereby consent to and grant to any such court jurisdiction over
the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or
other papers in the manner provided herein, or in such other
manner as may be permitted by law, shall be valid and sufficient
service thereof.
19. This Agreement may not be modified, amended or
supplemented without an express written agreement executed by the
parties hereto. Any inconsistency between this Agreement and the
Tender Documents, as they may from time to time be supplemented
or amended, shall be resolved in favor of the latter, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent.
20. This Agreement may be executed in one 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.
21. 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.
22. Unless terminated earlier by the parties hereto,
this Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 14 and 16 shall
survive the termination of this Agreement.
23. All notices and communications hereunder shall be
in writing and shall be deemed to be duly given if delivered
against written receipt thereof or mailed by first class
certified or registered mail, postage prepaid, or sent by
facsimile transmission, as follows:
If to GreenPoint: GreenPoint Financial Corp.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (212) ________
Attention: _____________
If to the Issuer: GreenPoint Capital Trust I
c/o GreenPoint Financial Corp.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (212) ________
Attention: _____________
If to you: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
or such other address or facsimile number as any of the above may
have furnished to the other parties in writing for such purpose.
24. This Agreement and all of the obligations hereunder
shall be assumed by any and all successors and assigns of the Issuer
and GreenPoint.
If the foregoing is in accordance with your
understanding, would you please indicate your agreement by
signing and returning the enclosed copy of this Agreement to
GreenPoint.
Very truly yours,
GREENPOINT FINANCIAL CORP.
By: _____________________________
Name:
Title:
GREENPOINT CAPITAL TRUST I
By: _____________________________
Name:
Title: Administrator
Agreed to this __ day of _______________, 0000
XXX XXXX XX XXX XXXX
By: _________________________
Name:
Title:
Exhibit A
Prospectus
Exhibit B
Tender Documents
Exhibit C
Schedule of Fees
Covers review of the Letter of Transmittal, DTC ATOP
Voluntary Offering Instruction, the Exchange Agent Agreement and
other related documentation, if any, as required by the Exchange
Offer; set-up of records and accounts; distribution of materials;
all operational and administrative charges and time in connection
with the review, receipt and processing of Letters of
Transmittal, processing delivery of Guarantees, legal items,
withdrawals, record keeping, and answering securityholders'
inquiries pertaining to the Exchange Offer.
Flat Fee: $2500
Per extension: 500
NOTE
These fees are also subject to change should circumstances
warrant. Reimbursement for all reasonable and documented
out-of-pocket expenses, disbursements (including postage,
telex, facsimile, photocopying and advertising costs), and
reasonable and documented fees of counsel (including their
reasonable and documented disbursements and expenses)
incurred in the performance of our duties will be added to
the billed fees. Once appointed, if the Exchange Offer
should fail to close for reasons beyond our control, we
will require reimbursement in full for our reasonable and
documented legal fees and any reasonable and documented
out-of-pocket expenses related to our responsibilities
under the Exchange Agent Agreement.
Fees for any services not specifically covered in this or
any other applicable schedule will be based on the
appraisal of services rendered.
