EXHIBIT 99.3
March __, 1997
EXCHANGE AGENT AGREEMENT
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The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bear Xxxxxxx Capital Trust I, a Delaware statutory business
trust (the "Issuer") proposes to make an offer (the "Exchange Offer")
to exchange up to $200,000,000 aggregate liquidation amount of its
Fixed/Adjustable Rate 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
Fixed/Adjustable Rate Capital Securities (liquidation amount $1,000
per Capital Security) (the "Old Capital Securities"), of which
$200,000,000 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
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of which is attached to this Agreement as Attachment A, proposed to be
distributed to all record holders of the Old Capital Securities.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act
as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to The
Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuer
on or about , 1997. The Letter of Transmittal
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accompanying the Prospectus is to be used by the holders of the Old
Capital Securities to accept the Exchange Offer, and contains certain
instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on April __, 1997 or on such later date or time to which the
Issuer or The Bear Xxxxxxx Companies Inc. (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,
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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,
certificates for Old Capital Securities and confirmations of book-
entry transfers into your account at the Book-Entry Transfer Facility
and any Agent's Message or other documents delivered or mailed to you
by or for holders of the Old Capital Securities to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set
forth therein and (ii) the Old Capital Securities have otherwise been
properly tendered. In each case where the Letter of Transmittal or
any other document has been improperly completed or executed or any of
the certificates for Old Capital Securities are not in
proper form for transfer or some other irregularity in connection with
the acceptance of the Exchange Offer exists, you will endeavor to
inform the presenters of the need for fulfillment of all requirements
and to take any other action as may be necessary or advisable to cause
such irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer or the
Secretary of the Company (such approval, if given orally, to be
confirmed in writing) or any other party designated by the Issuer or
such officer of the Company in writing, you are authorized to waive
any irregularities in connection with any tender of Old Capital
Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as
set forth in the section of the Prospectus captioned "The Exchange
Offer -- Procedures for Tendering Old Capital Securities" or in the
Letter of Transmittal and Old Capital Securities shall be considered
properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Capital Securities which the Issuer or any other party designated by
the Issuer in writing shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Old
Capital Securities delivered subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are
registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority to so act
is submitted; and
(c) from persons other than the registered holder of Old
Capital Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal and
deliver certificates for Old Capital Securities to the transfer agent
for split-up and return any untendered Old Capital Securities to the
holder (or to such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
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 Company's and
Issuer's acceptance, promptly after the Expiration Date, of all Old
Capital Securities properly tendered and you, on behalf of the Issuer,
will exchange such Old Capital Securities for New Capital Securities
and cause such Old Capital Securities to be canceled. Delivery of New
Capital Securities will be made on behalf of the Issuer by you at the
rate of $1,000 principal amount at maturity of New Capital Securities
for each $1,000 principal amount at maturity of the Old Capital
Securities tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Old
Capital Securities by the Issuer; provided, however, that in all
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cases, Old Capital Securities tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for
such Old Capital Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees (or in lieu thereof an
Agent's Message) and any other required document. You shall issue New
Capital Securities only in denominations of $1,000 or any integral
multiple thereof.
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 Company or 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.
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
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general duty to act in good faith be discharged by the foregoing;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any expense
or liability, unless you shall have been furnished with reasonable
indemnity.
(c) shall not be liable to the Company or the Issuer for
any action taken or omitted by you, or any action suffered by you to
be taken or omitted, without negligence, misconduct or bad faith on
your part, by reason of or as a result of the administration of your
duties hereunder in accordance with the terms and conditions of this
Agreement or by reason of your
compliance with the instructions set forth herein or with any written
or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in
reliance upon any certificate, instrument, opinion, notice, letter,
facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by
the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its
due execution and validity and the effectiveness of its provisions,
but also as to the truth and accuracy of any information contained
therein, which you shall in good faith reasonably believe to be
genuine or to have been signed or represented by a proper person or
persons;
(e) may rely on and shall be protected in acting upon
written or oral instructions from the Issuer or any officer of the
Company with respect to the Exchange Offer;
(f) shall not advise any person tendering Old Capital
Securities pursuant to the Exchange Offer as to the wisdom of making
such tender or as to the market value or decline or appreciation in
market value of any Old Capital Securities; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by you
hereunder in good faith and in accordance with such written opinion of
such counsel.
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 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to the Issuer,
the Company and Weil, Gotshal & Xxxxxx LLP, counsel for the Company
and the Issuer, and such other person or persons as they may request,
daily, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the principal amount of the Old
Capital Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement,
separately reporting and 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 Issuer or any such other
person or persons as the Company or the Issuer request from time to
time prior to the Expiration Date of such other information as they,
or he reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company, the Issuer and such
person as the Company or the Issuer may request of access to those
persons on your staff who are responsible for receiving tenders, in
order to ensure that immediately prior to the Expiration Date, the
Company and the Issuer shall have received information in sufficient
detail to enable them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose
tenders were not accepted and the aggregate principal amount of Old
Capital Securities not tendered or Old Capital Securities not accepted
and deliver said list to the Company and the Issuer at least seven
days prior to the Expiration Date. You shall also prepare a final
list of all persons whose tenders were accepted, the aggregate
principal amount of Old Capital Securities tendered and the aggregate
principal amount of Old Capital Securities accepted and deliver said
list to the Company.
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 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
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. The Company and the Issuer jointly and severally agree
to indemnify and hold you harmless in your capacity as Exchange Agent
hereunder against any liability, cost or expense, including reasonable
attorneys's fees, arising out of or in connection with the acceptance
or administration of your duties hereunder, including, without
limitation, in connection with any act, omission, delay or refusal
made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine
and sufficient and in accepting any tender or effecting any transfer
of Old Capital Securities reasonably believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Capital Securities; provided,
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however, that the Company and the Issuer shall not be liable for
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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, and, if the
Company and the Issuer so elect, the Company and the Issuer shall
assume the defense of any suit brought to enforce any such claim. In
the event that the Company and the Issuer shall assume the defense of
any such suit, the Company and the Issuer shall not be liable for the
fees and expenses of any additional counsel thereafter retained by you
so long as the Company and the Issuer shall retain counsel reasonably
satisfactory to you to defend such suit. You shall not compromise or
settle any such action or claim without the consent of the Company and
the Issuer.
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 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 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:
The Bear Xxxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Block
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: Xxxx Xxxxxxx
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 Section 17, upon
any termination of this Agreement, you shall promptly deliver to the
Company any funds or property (including, without limitation, Letters
of Transmittal and any other documents relating to the Exchange Offer)
then held by you as Exchange Agent under this Agreement.
27. 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.
THE BEAR XXXXXXX COMPANIES INC.
By:
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Name:
Title:
BEAR XXXXXXX CAPITAL TRUST I
By:
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Name:
Title:
Accepted as the date
first above written:
The Chase Manhattan Bank
By:
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Name:
Title:
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