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EXHIBIT 99.3
, 1997
EXCHANGE AGENT AGREEMENT
(the "Agreement")
The Chase Manhattan Bank
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Trenwick Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), proposes to make an offer (the "Exchange
Offer") to exchange its 8.82% Subordinated Capital Income Securities (the "Old
Capital Securities") for its registered 8.82% Exchange Subordinated Capital
Income Securities (the "Exchange Capital Securities"). The terms and conditions
of the Exchange Offer, as currently contemplated are set forth in a prospectus,
dated , 1997 (the "Prospectus"), proposed to be distributed to all
record holders of the Old Capital Securities. The Old Capital Securities and the
Exchange Capital Securities collectively are 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. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Trust on or about
, 1997. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Capital Securities to accept the Exchange
Offer, and contains instructions with respect to the delivery of certificates
for Old Capital Securities tendered.
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 Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Trust and Trenwick Group Inc. (the "Company")
expressly reserve the right to extend the Exchange Offer from time to time and
may extend the Exchange Offer by given 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 Company expressly reserve the right to delay, 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
captions "The Exchange Offer -- Terms of the Exchange Offer" and "-- Conditions
to the Exchange Offer". The Trust or the Company 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 Old Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two (2) business days
after the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make
book-entry delivery of the Old Capital Securities by causing the Book-Entry
Transfer Facility to transfer such Old Capital Securities into your account
in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Capital Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any
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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 Chairman of the Board or the Vice
President and Treasurer of the Company (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 Old Capital Securities pursuant to the
Exchange Offer.
5. Tenders of Old Capital Securities may be made only as set forth in
the Letter of Transmittal and 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 above, Old Capital
Securities which the Chairman of the Board or the Vice President and Treasurer
of the Company 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 Company 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
(2) or more names only if signed by all named holders; and
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Old Capital
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Capital Securities to the transfer agent for split-up and return any
indentured Old Capital Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (such notice if given orally,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Capital Securities properly tendered and you,
on behalf of the Trust, will exchange such Old Capital Securities for
Exchange Capital Securities and cause such Old Capital Securities to be
cancelled. Delivery of Exchange Capital Securities will be made on behalf
of the Trust by you at the rate of $1,000 Liquidation Amount (as defined in
the Prospectus) of Exchange Capital Securities for each $1,000 Liquidation
Amount of the Old Capital Securities tendered promptly after notice (such
notice if given orally, promptly to be confirmed in writing) of acceptance
of said Old Capital Securities by the Trust; provided, however, that in all
cases, Old Capital Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certificates for such Old
Capital Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required 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, Old Capital Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
10. The Trust shall not be required to exchange any Old Capital
Securities tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Trust not to exchange any
Old Capital Securities tendered shall be given (such notices if given
orally, promptly shall be confirmed in writing) by the Trust or the Company
to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Old Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the captions "The Exchange Offer -- Terms of the Exchange
Offer" and "-- Conditions to the Exchange Offer" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Capital Securities (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Capital Securities, unaccepted
Old Capital Securities or for 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 Old Capital Securities represented
thereby deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer;
(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 Company 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 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 Company or any
trustee of the Trust with respect to the Exchange Offer;
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(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;
(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 Old 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 Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Trust or the Company 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 Company, to all
holders of Old Capital Securities and 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 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: Trenwick Group Inc., Metro Center, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, Vice
President -- Legal Affairs and Secretary. Telephone requests may be
directed to (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxx X. Xxxxxxxxx of the Company,
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 Old Capital Securities which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to
this Agreement, separately reporting and giving cumulative totals as to
items properly received and items improperly received. In addition, you
will also inform, and cooperate in making available to, the Trust or any
such other person or persons as the Company 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 Company and such person as the Company 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 shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Capital Securities tendered 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 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 Company, or any of its subsidiaries or affiliates pursuant
to any loan or credit agreement with you or for compensation owed to you
hereunder.
19. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses
as 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
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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. Each of the Trust and the Company, jointly and severally, 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 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 neither the Trust nor the
Company 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 Old Capital Securities your check in the amount
of all transfer taxes so payable, and the Company shall reimburse you for
the amount of any and all transfer taxes payable in respect of the exchange
of Old Capital Securities; provided, however, that you shall reimburse the
Trust 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
insure 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 (2) 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, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
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, as its
address or telecopy number set forth below:
If to the Trust or the Company:
Trenwick Group Inc.
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
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If to the Exchange Agent:
The Chase Manhattan Bank
00 Xxxxx Xxxxxx, Xxxx 000
Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety (90) days follow 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 Company any certificates for Old 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.
TRENWICK CAPITAL TRUST I
By:
--------------------------------------
Name:
Title: Administrative Trustee
By:
--------------------------------------
Name:
Title: Administrative Trustee
By:
--------------------------------------
Name:
Title: Administrative Trustee
TRENWICK GROUP INC.
By:
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Xxxxx X. Xxxxxxx, Xx.
Chairman, President and Chief
Executive Officer
Accepted as the date
first above written:
THE CHASE MANHATTAN BANK
By:
--------------------------------------
Name:
Title:
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TRENWICK CAPITAL TRUST I
EXCHANGE AGENCY
FEE SCHEDULE
Flat Fee...................................... Five Thousand U.S. Dollars ($5,000.00)
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 Trust.
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