EXHIBIT 99.3
January ___, 1998
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:
MMI Capital Trust I (the "Trust") and MMI Companies, Inc. (the
"Corporation") propose to make an offer (the "Exchange Offer") to exchange the
Trust's outstanding 7 5/8% Series A Capital Securities (the "Original Capital
Securities") for the Trust's registered 7 5/8% Series B Capital Securities (the
"Exchange Capital Securities"). The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, dated January ___, 1998
(the "Prospectus"), proposed to be distributed to all record holders of the
Original Capital Securities. The Original Capital Securities and the Exchange
Capital Securities are collectively referred to herein as the "Capital
Securities" or the "Securities".
The Trust hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. Reference
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Trust on or about
January ___, 1998. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Original Capital Securities to accept the Exchange
Offer, and contains instructions with respect to the delivery of certificates
for Original Capital Securities tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
___________, 1998 or on such later date or time to which the Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Trust and the Corporation expressly reserve the
right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (confirmed in writing) or
written notice to you before 9:00 a.m., New York City time, on the business
day following the previously scheduled Expiration Date.
The Trust and the Corporation expressly reserve the right to delay, amend
or terminate the Exchange Offer, and not to accept for exchange any Original
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." The Trust or the Corporation will give to you
as promptly as practicable oral (confirmed in writing) or written notice of any
delay, amendment, termination or nonacceptance.
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 herein and such duties which are necessarily incidental thereto.
2. You will establish an account with respect to the Original 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 Original
Capital Securities by causing the Book-Entry Transfer Facility to transfer such
Original 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 Original 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 Original 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 Original 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 Original 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 Chairman of the Board, the Executive Vice
President or any Vice President of the Corporation (such approval, if given
orally, promptly to be confirmed in writing) or any other party designed by such
officer in writing, you are authorized to waive any irregularities in connection
with any tender of Original Capital Securities pursuant to the Exchange Offer.
5. Tenders of Original Capital Securities may be made only as set forth in
the Letter of Transmittal and Original Capital Securities shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
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Notwithstanding the provisions of this paragraph 5, Original Capital
Securities which the Chairman of the Board, the Executive Vice President or any
Vice President of the Corporation or any other party designated by any such
officer in writing shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, promptly
shall be confirmed in writing).
6. You shall advise the Corporation with respect to any Original Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Original Capital Securities.
7. You shall accept tenders:
(a) in cases where the Original 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 Original Capital
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Capital Securities where
so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Original Capital Securities to the transfer agent for split-up
and return any untendered Original 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, promptly to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Capital Securities for Exchange Capital Securities and cause such
Original Capital Securities to be canceled. Delivery of Exchange Capital
Securities will be made on behalf of the Trust by you at the rate of $1,000
liquidation amount of Exchange Capital Securities for each $1,000 liquidation
amount of the Original Capital Securities tendered promptly after notice (such
notice if given orally, promptly to be confirmed in writing) of acceptance of
said Original Capital Securities by the Trust; provided, however, that in all
cases, Original Capital Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certificates for such Original
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 (as defined in the Prospectus) in lieu of the Letter of
Transmittal, and any other required document. You shall issue Exchange Capital
Securities only in aggregate liquidation amounts of $1,000 or any integral
multiple thereof.
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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, Original 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 Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Trust not to exchange any Original
Capital Securities tendered shall be given (such notices if given orally,
promptly shall be confirmed in writing) by the Trust or the Corporation to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Original 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" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Original 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 Original Capital Securities, unaccepted
Original Capital Securities or for Exchange Capital Securities shall be
forwarded by (a) first-class mail, postage pre-paid 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 persons 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 Original 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;
(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 Trust or the Corporation 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
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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 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 notice or
oral instructions from any officer of the Corporation or any trustee of the
Trust with respect to the Exchange Offer;
(f) shall not advise any person tendering Original 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 Original
Capital Securities;
(g) may consult with counsel and the written advice or 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
reliance thereon.
15. You shall send to all holders of Original Capital Securities a copy of
the Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
defined in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Trust or the Corporation to
commence the Exchange Offer and take such other action as may from time to time
be requested by the Trust or the Corporation or its counsel (and such other
action as you may reasonably deem appropriate) to furnish copies of the Exchange
Offer Documents or such other forms as may be approved from time to time by the
Trust or the Corporation, to all holders of Original Capital Securities and to
all persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer. The Corporation 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
Corporation, Attention: Xxxx X. Xxxxxx, Executive Vice President and Chief
Financial Officer, at the Corporation's offices at 000 Xxxx Xxxx Xxxx,
Xxxxxxxxx, XX 00000, telephone (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Xxxx X. Xxxxxx of the Corporation, and such
other person or persons as the Trust may request in writing, not later than 7:00
p.m., New York City time, each business day, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the number of Original
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
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or any such other person or persons as the Corporation requests in writing from
time to time prior to the Expiration Date, of such other information as it
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Corporation and such person as the Corporation 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 Corporation 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 Original Capital Securities tendered and the aggregate principal
amount of Original Capital Securities accepted and deliver said list to the
Corporation.
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
customarily preserve other records pertaining to the transfer of securities.
You shall dispose of unused Letters of Transmittal and other surplus materials
in accordance with your customary procedures.
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
Corporation, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owned to you hereunder.
19. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses as is
set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (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 Corporation, on behalf of itself and the Trust, agrees to
indemnify and hold you harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorneys' fees and
expenses, arising out of or in connection with your appointment as Exchange
Agent and the performance of your duties hereunder, including, without
limitation, 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 Original 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 Original Capital
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Securities; provided, however, that neither the Trust nor the Corporation shall
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.
22. 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 Original Capital Securities your check in the amount of all
transfer taxes so payable, and the Corporation shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Original Capital Securities; provided, however, that you shall reimburse the
Corporation 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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 Trust or the Corporation:
MMI Companies, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Executive Vice President and
Chief Financial Officer
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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.
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Corporation any certificates for Original 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.
29. 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.
MMI CAPITAL TRUST I
By:
-------------------------------------
Name:
Title: Administrative Trustee
MMI COMPANIES, INC.
By:
--------------------------------------
Name:
Title:
Accepted as the date
first above written:
THE CHASE MANHATTAN BANK
By:
------------------------------
Name:
Title:
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MMI CAPITAL TRUST I
Exchange Agency
Fee Schedule
Flat Fee............................................. $_________
Out-Of-Pocket Expenses
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses, facsimile, stationary, postage,
telephone, overnight courier and messenger costs, all of which shall be paid by
the Corporation.
