EXHIBIT 99.3
Allmerica Financial Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
EXCHANGE AGENT AGREEMENT
July , 0000
Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AFC Capital Trust I, a Delaware statutory business trust (the "Issuer")
proposes to make an offer (the "Exchange Offer") to exchange up to $300,000,000
aggregate liquidation amount of its 8.207% 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 8.207%
Series A Capital Securities (liquidation amount $1,000 per Capital Security)
(the "Old Capital Securities"), of which $300,000,000 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 meaning 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 instructions with respect to the Exchange Offer.
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 Issuer or Allmerica
Financial 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
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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 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.
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4. With the approval of an Administrative Trustee of the Issuer or the
President and Chief Executive Officer, the Vice President and Chief Financial
Officer or the Vice President and General Counsel of the Company (such approval,
if given orally, to be confirmed 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 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 the 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.
8. 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
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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 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,
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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 you
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 Agent's Message in lieu thereof) and any other required
document. 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 on or prior to the Expiration Date.
10. 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.
11. 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.
12. 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.
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.
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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 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 conclusively rely on and shall be
fully 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 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 conclusively rely on and shall be fully 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 advice or written opinion of such counsel.
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15. 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 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Issuer, the Company and Ropes &
Xxxx, counsel for the Company and the Issuer, and such other person or persons
as they may request, weekly, 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 giving
cumulative totals of the items properly received, items improperly received and
items covered by Notices of Guaranteed delivery. You shall also provide the
Company, the Issuer or any such other person or persons as the Company or the
Issuer may request from time to time prior to the Expiration Date with such
other information as the Company, the Issuer or such other person may reasonably
request. In addition, you shall grant to the Company, the Issuer and such
persons as the Company or the Issuer may request, 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 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.
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.
18. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $______ 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
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excess of $______) 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.
19. 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.
20. The Company and the Issuer jointly and severally agree to indemnify
and hold you (and your officers, directors, employees and agents) 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, enforcement, 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
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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 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. You shall not compromise or settle any such
action or claim without the consent of the Company and the Issuer.
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, 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
constitute one and the same agreement.
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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 a duly authorized representative of the party to be
charged. 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 Issuer:
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Vice President - Investor
Relations
Facsimile: (000) 000-0000
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, x0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000/60
26. 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 Paragraph 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.
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.
ALLMERICA FINANCIAL CORPORATION
By: __________________________
Name:
Title:
AFC CAPITAL TRUST I
By: __________________________
Name:
Title:
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK,
as Exchange Agent
By: ______________________________
Name:
Title:
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