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Exhibit 99(c)
___________, 1997
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Cullen/Frost Bankers, Inc. (the "Company") and Cullen/Frost Capital
Trust I (the "Issuer") propose to make an offer (the "Exchange Offer") to
exchange, among other securities, the outstanding 8.42% Capital Securities,
Series A of the Issuer (the "Old Capital Securities") for a like liquidation
amount of the 8.42% Capital Securities, Series A of the Issuer which are being
registered under the U.S. Securities Act of 1933 (the "New Capital Securities").
The terms and conditions of the Exchange Offer as currently contemplated will be
set forth in a prospectus, dated ___________, 1997 (the "Prospectus"), to be
distributed to all record Holders of the Old Capital Securities. The Old Capital
Securities and the New Capital Securities are collectively referred to herein as
the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York. 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.
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") 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, and the form of letter to brokers and the form
of letter to clients (together, with the Letter of Transmittal and the Notice of
Guaranteed Delivery, the "Tender Documents") are attached hereto as Exhibit B.
The Exchange Offer is expected to be commenced by the Company on or
about _____________, 1997. The Letter of Transmittal accompanying the Prospectus
(or in the case of book entry securities, the Automated Tender Offer Program
("ATOP") system) is to be used by the Holders of the Old Capital
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Securities to accept the Exchange Offer and the Prospectus contains instructions
with respect to the delivery of certificates for Old Capital Securities tendered
in connection therewith.
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 Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves 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 Company expressly reserves 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." The Company will give oral
(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" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the Company 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 become Holders prior to the
Expiration Date and to any persons as may from time to time be requested by the
Company. All mailings pursuant to this Section 1 shall be by first-class mail,
postage prepaid, unless otherwise specified by the Company 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 the Company,
Attention: Xxxx X. Xxxxxxx.
3. You are to examine the Letters of Transmittal and
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the Old Capital Securities and other documents delivered 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, (iii) the Old Capital Securities tendered in part are
tendered in principal amounts of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof and that if any Old Capital Securities are
tendered for exchange in part, the untendered principal amount thereof is
$100,000 (100 Capital Securities) or any integral multiple of $1,000 in excess
thereof, and (iv) Holders have provided their correct 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 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, the
Company and the Issuer at their written instructions or oral direction confirmed
by facsimile. Any determination made by the Company and the Issuer on such
questions shall be final and binding.
4. At the written request of the Company 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 the
Company.
5. 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 officers of
the Company or the Issuer shall approve in writing as having been properly
tendered shall be considered to be properly tendered. New Capital Securities are
to be issued in exchange for Old Capital Securities pursuant to the Exchange
Offer only (i) against deposit with you prior to the Expiration Date or, in the
case of a tender in accordance with the guaranteed delivery procedures outlined
in Instruction 1 of the Letter of
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Transmittal, within three New York Stock Exchange trading days after the
Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and any other documents required by the Exchange Offer or (ii) in
the event that the Holder is a participant in The Depository Trust Company
("DTC") system, by the utilization of DTC's ATOP and any evidence required by
the Exchange Offer.
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, 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, property 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.
6. You shall advise the Company with respect to any Old Capital
Securities received 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 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
untendered 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.
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8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally, 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 Company,
will exchange such Old Capital Securities for New Capital Securities and cause
such Old Capital Securities to be cancelled. Delivery of New Capital Securities
will be made on behalf of the Company by you at the rate of $1,000 principal
amount of New Capital Securities for each $1,000 principal amount of the
corresponding series of Old Capital Securities tendered promptly after notice
(such notice if given orally, to be confirmed in writing) of acceptance of said
Old Capital Securities by the Company; 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 documents. 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 prior to the Expiration Date.
10. The Company 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 not to exchange any Old Capital
Securities tendered shall be given (and confirmed in writing) by the Company to
you.
11. If, pursuant to the Exchange Offer, the Company 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 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 New Capital Securities shall be forwarded by (a)
first-class certified mail, return receipt requested under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
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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. 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
cancelled and retired by you in your capacity as Property Trustee (the
"Trustee") under the Amended and Restated Trust Agreement, dated February 3,
1997, governing the Capital Securities, as you are instructed by the Company (or
a representative designated by the Company) in writing.
14. 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.
15. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing by
you and the Company;
(b) 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;
(c) 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;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram 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;
(e) 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 believe to be genuine or to have been signed or represented by a proper
person or persons;
(f) may rely on and shall be protected in acting
upon written or oral instructions from any officer of the
Company;
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(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(h) 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.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the General Counsel of the Company and
such other person or persons as it may request, daily (and more frequently
during the week immediately preceding the Expiration Date and if otherwise
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 Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as it or he
or she 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, 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. 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
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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 as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined each of them. 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.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising out
of or in connection with any act, omission, delay or refusal made by you in
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 the Company shall not be liable for indemnification or otherwise for any
loss, liability, cost or expense to the extent arising out of your bad faith,
gross negligence or willful misconduct. In no case shall the Company be liable
under this indemnity with respect to any claim against you unless the Company
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 notice of commencement of action. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company shall retain counsel satisfactory to you to defend such suit.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required to deduct 31% on
payments to Holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in
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accordance with applicable regulations.
23. 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 Company 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Cullen/Frost Bankers, Inc.
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
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If to the Issuer:
Cullen/Frost Capital Trust I
c/o Cullen/Frost Bankers, Inc.
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
30. 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.
CULLEN/FROST BANKERS, INC.
By:______________________
Name:
Title:
CULLEN/FROST CAPITAL TRUST I
By:______________________
Name:
Administrator
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
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SCHEDULE I
FEES
