EXHIBIT 99.3
WILMINGTON TRUST COMPANY
EXCHANGE AGENT AGREEMENT
____________ ___, 1998
Wilmington Trust Company
Corporate Trust Operations
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Xxxxxxx Capital Trust II, a trust formed under the laws of the State
of Delaware (the "Trust"), together with Xxxxxxx Financial Corporation, a
Delaware corporation (the "Corporation"), is offering to exchange (the "Exchange
Offer") any and all of its outstanding 10.00% Capital Securities (Liquidation
Amount $1,000 per Capital Security) (the "Original Capital Securities") for its
10.00% Exchange Capital Securities (Liquidation Amount $1,000 per Capital
Security) (the "Exchange Capital Securities"). All of the beneficial interests
represented by common securities of the Trust are owned by the Corporation. The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated _____, 1998 (as the same may be amended or
supplemented from time to time, the "Prospectus"), to be distributed to all
record holders of the Original Capital Securities. A copy of the Prospectus is
attached hereto as Exhibit A. The Original Capital Securities and the Exchange
Capital Securities are collectively referred to herein as the "Securities."
Capitalized terms used but not defined herein shall have the same meaning given
them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of
the Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients are attached hereto as Exhibit B.
The Trust hereby appoints Wilmington Trust Company to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Trust on or
about ________, 1998. The Letter of Transmittal accompanying the Prospectus (or
in the case of book entry securities, the ATOP system) is to be used by the
holders of the Original Capital
Securities to accept the Exchange Offer and contains instructions with respect
to (a) the delivery of certificates for Original Capital Securities tendered in
connection therewith and (b) the book-entry transfer of Securities to the
Exchange Agent's account.
The Exchange Offer shall expire at 5:00 p.m., New York City time, o
____________, 1998 or on such later date or time to which the Corporation or the
Trust may extend the Exchange Offer (the "Expiration Date"). Subject to the
terms and conditions set forth in the Prospectus, the Trust expressly reserves
the right to extend the Exchange Offer from time to time by giving oral (to be
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 expressly reserves the right to 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 -- Conditions to the Exchange Offer." The Trust will give
you prompt oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities.
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 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 system 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: (a) the Letters of Transmittal and any such
other documents are duly executed and properly completed in accordance with
instructions set forth therein and (b) 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 such holders 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 any Administrator of the Trust or any person
designated in writing by the Corporation (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by any such Administrator or Designated 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 in the section of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering Original Capital
Securities," and Original 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 five, Original
Capital Securities that any Administrator of the Trust or Designated Officer of
the Corporation 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 Trust and the Corporation with respect to any
Original Capital Securities received subsequent to the Expiration Date and
accept their 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 such person's 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
satisfaction of 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 division
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, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Capital Securities properly tendered and you, on behalf of the
Trust, will exchange such 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 principal amount of Exchange Capital Securities for each $1,000
principal amount of the corresponding series of Original Capital Securities
tendered promptly after notice (such notice, if given orally, 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 and any other required
documents. You shall issue Exchange Capital Securities only in denominations of
$1,000 or any integral multiple thereof. Original Capital Securities may be
tendered in whole or in part in denominations of $100,000 and integral multiples
of $1,000 in excess thereof, provided that if any Original Capital Securities
are tendered for exchange in part, the untendered principal amount thereof must
be $100,000 or any integral multiple of $1,000 in excess 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, Original Capital Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time on or 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 orally (and confirmed in writing) by
the Trust 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 -- Conditions to the Exchange
Offer" or otherwise, you shall promptly 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 (a) by first-class certified mail, return receipt requested, 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; (b) by
registered mail insured separately for the replacement value of each of such
certificates or (c) by effectuating appropriate book-entry transfer.
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) shall have no duties or obligations other than those specifically
set forth in the section of the Prospectus captioned "The Exchange
Offer," the Letter of Transmittal or herein or as may be subsequently
agreed to in writing by you and the Trust;
(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 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 or the Letter of
Transmittal or any other disclosure materials delivered in connection
therewith;
(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 indemnity reasonably
satisfactory to you;
(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, 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 Administrator of the Trust or from any Designated
Officer of the Corporation;
(g) may consult with counsel satisfactory to you, including counsel for
the Trust, 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, provided
that you shall promptly notify the Corporation of any action taken or
omitted by you in reliance upon such advice or opinion; and
(h) 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.
15. You shall take such action as may from time to time be requested
by the Trust or its counsel or any Designated Officer of the Corporation (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 Trust or the
Corporation, 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 Trust 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 Trust, Attention: Xxxxx X. Xxxxxxx.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxx X. Xxxxxxx of the Trust, and
such other person or persons as the Trust or the Corporation 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 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 or the Corporation or any such other person or
persons, upon oral request made from time to time on or prior to the Expiration
Date, such other information as it or such person reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the Trust
or the Corporation, and such person as the Trust or 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 Trust or 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, the aggregate principal amount of Original Capital
Securities accepted and deliver said list to the Trust promptly after the
Expiration Date.
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.
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
Trust, 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 the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in
connection with your services hereunder, within 30 days following receipt by the
Corporation of an itemized statement of such expenses and fees in reasonable
detail.
20. (a) The Trust covenants and agrees to indemnify and hold you
(which for purposes of this paragraph shall include your directors, officers and
employees) harmless in your capacity as Exchange Agent hereunder from and
against any and all loss, liability, cost, damage, expense and claim, including
but not limited to reasonable attorneys' fees and expenses, incurred by you as a
result of, arising out of or in connection with the performance by you of your
duties under this Agreement or the compliance by you with the instructions set
forth herein or delivered hereunder; provided, however, that the Trust shall not
be liable for indemnification or otherwise for any loss, liability, cost,
damage, expense or claim arising out of your gross negligence or willful
misconduct. In no case shall the Trust be liable under this indemnity with
respect to any claim against you unless the Trust shall be notified by you, by
letter 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 Trust shall be entitled to participate at its own expense in the
defense of any such claim or other action, and, if the Trust so elects, the
Trust may assume the defense of any suit brought to enforce any such claim;
provided that the Trust shall not be entitled to assume the defense of any such
action if the named parties to such action include both the Trust and you and
representation of both parties by the same legal counsel would, in the written
opinion of counsel to you, be inappropriate due to actual or potential
conflicting interests between them. If the Trust shall assume the defense of any
such suit or threatened action in respect of which indemnification may be sought
hereunder, the Trust shall not be liable for the fees and expenses of any
counsel thereafter retained by you. The Trust shall not be liable under this
paragraph for the fees and expenses of more than one legal counsel for you.
(b) You agree that, without the prior written consent of the Trust
(which consent shall not be unreasonably withheld), you will not settle,
compromise or consent to the entry of any pending or threatened claim, action,
or proceeding in respect of which indemnification could be sought in accordance
with the indemnification provisions of this Agreement (whether or not you or the
Trust or any of its trustees or controlling persons is an actual or potential
party to such claim, action or proceeding), unless such settlement, compromise
or consent includes an unconditional release of the Trust and its trustees and
controlling persons from all liability arising out of such claim, action or
proceeding.
21. 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 Trust understands that you are required in certain
instances to deduct 31% of the amounts to be paid with respect to interest paid
on the Exchange Capital Securities and proceeds from the sale, exchange,
redemption or retirement of the Exchange Capital Securities from 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
accordance with applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes
payable in respect of the exchange of Original Capital Securities and, upon
receipt of written approval from the Trust, 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
Trust 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 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
Delaware 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, and no other person shall have any
rights hereunder.
24. This Agreement may be executed in one 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
or similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth below:
If to the Trust:
Xxxxxxx Capital Trust II
c/o Webster Financial Corporation
Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
If to the Exchange Agent:
Wilmington Trust Company
Corporate Trust Operations
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 180 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 20 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Trust any certificates for Securities, funds or property 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.
XXXXXXX FINANCIAL CORPORATION
By:
----------------------------
Name:
Title:
XXXXXXX CAPITAL TRUST II
By:
----------------------------
Name:
Title:
Accepted as the date first above written:
WILMINGTON TRUST COMPANY, as Exchange Agent
By:
----------------------------
Name:
Title:
SCHEDULE I
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FEES
WILMINGTON TRUST COMPANY
CORPORATE TRUST ADMINISTRATION DEPARTMENT
SCHEDULE OF FEES
FOR
XXXXXXX CAPITAL TRUST II
10.00% EXCHANGE CAPITAL SECURITIES
EXCHANGE AGENT $3,000
Covers review of the Letter of Transmittal, the Exchange Agent Agreement and
other related documentation; establishment of accounts and systems link with
depositories; operational and administrative charges and time spent in
connection with the review, receipt and processing of Letters of Transmittal,
Agent's Messages and Notices of Guaranteed Delivery.
Note: The fees set forth in this schedule are subject to review of documentation
and our internal credit and conflict review. The fees are also subject to change
should circumstances warrant. Out-of-pocket expenses and disbursements,
including counsel fees, incurred in the performance of our duties will be added
to the billed fees. Fees for any services not specifically covered in this or
other related schedules will be based on an appraisal of services rendered.
