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EXHIBIT 99.3
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Corporate Trust and
Agency Group
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Market Services
Ladies and Gentlemen:
Triangle Capital Trust (the "Issuer Trust"), a statutory business trust
created under the laws of the State of Delaware, together with Triangle
Bancorp, Inc., a North Carolina corporation (the "Company"), is offering to
exchange (the "Exchange Offer") up to $20,000,000 aggregate liquidation amount
of its 9.375% Capital Securities (the "New Capital Securities") for an equal
principal amount of its outstanding 9.375% Capital Securities (the "Old Capital
Securities"), of which $20,000,000 aggregate liquidation amount is outstanding
(the "New Capital Securities" and the "Old Capital Securities" are collectively
referred to herein as the "Capital Securities"), pursuant to a prospectus (the
"Prospectus") included in the Company's Registration Statement on Form S-4
(File No._____________________________) as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC").
The Term "Expiration Date" shall mean 5:00 p.m., New York City time, on
______________________, 1997, unless the Exchange Offer is extended as provided
in the Prospectus, in which case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended. Upon execution
of this Agreement, Bankers Trust Company will act as the Exchange Agent for the
Exchange Offer (the "Exchange Agent"). 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 letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter of
clients (collectively, the "Tender Documents") to be used by Holders of Old
Capital Securities in order to receive New Notes pursuant to the Exchange Offer
are attached hereto as Exhibit B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you
are to act in accordance with the following provisions of this Agreement:
1. 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 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 the date thereof and to any persons who become Holders prior
to the Expiration Date and to any persons as may from time to time be
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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. 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 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:
2. You are to examine Letters of Transmittal and the Old Capital
Securities and other documents delivered or mailed to you, by or for the
Holders, prior to the Expiration Date, to ascertain whether (i) the Letters of
Transmittal are properly executed and completed in accordance with the
instructions set forth therein, (ii) the Old Capital Securities are in proper
form for transfer and (iii) all other documents submitted to you are in proper
form. 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 are authorized to endeavor to 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 at their written instructions or oral direction
confirmed by facsimile. Any determination made by the Company on such
questions shall be final and binding.
3. At the written request of the Company or its counsel,
___________________ , you shall notify tendering Holders of Old Capital
Securities 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.
4. Tender of the Old Capital Securities may be made only as set froth in
the Letter of Transmittal. Notwithstanding the foregoing, tenders which the
Company shall approve in writing as having been properly delivered shall be
considered to be properly tendered. Letters of Transmittal and Notices of
Guaranteed Delivery shall be recorded by you as to the date and time of receipt
and shall be preserved and retained by you at the Company's expense for six
years. 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 5 of the Letter of
Transmittal, within three New York Stock Exchange trading days after the
Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and other documents required by the Exchange Offer or (ii) in the
event that the Holder is a participant in the Depositary Trust Company ("DTC"
system, by the utilization of DTC's Automated Tender Offer Program ("ATOP") and
any evidence required by the Exchange Offer.
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You are hereby directed to establish an account with respect to the
Capital Securities at The Depositary Trust Company (the "Book Entry Transfer
Facility") within two days after the date hereof in accordance with SEC
Regulation 240.17 Ad. 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 Shares by causing the Book Entry Facility to
transfer such 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, properly 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 Offer must be
complied with.
5. Upon oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to __________________ or
such other persons as the Company may reasonably request, the aggregate number
and principal amount of Old Capital Securities tendered to you and the number
and principal amount of Old Capital Securities property tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonable request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Capital Securities will be made by you promptly after
acceptance of the tendered Old Capital Securities. You will be hold all items
which are deposited for tender with you after 5:00 p.m. New York City time, on
the Expiration Date pending further instructions from an officer of the
Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Capital Securities registered in his or her name is due to the
loss or destruction of a certificate or certificates, you shall request such
Holder (i) to furnish to you an affidavit of loss and, if required by the
Company, a bond of indemnity in an amount and evidenced by such certificate or
certificates of a surety, as may be satisfactory to you and the Company, and
(ii) to execute and deliver an agreement to indemnity the Company and you in
such form as is acceptable to you and the Company. The obligees to be named in
each such indemnity bond shall include the Company and you. You shall report
to the Company the names of all Holders who claim that their Old Capital
Securities have been lost or destroyed and the principal amount of such Old
Capital Securities.
8. As soon as practicable after the Expiration Date, you shall mail or
to a Holder the New Capital Securities that such Holder may be entitled to
receive and you shall arrange for cancellation of the Old Capital Securities
submitted to you or returned by DTC in connection with ATOP. Such Capital
Securities shall be forwarded to ____________ for cancellation and retirement
as you are instructed by the Company (or a representative designated by the
Company) in writing.
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9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and agreed
to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Capital Securities deposited with you hereunder,
any New Capital Securities, and Tender Documents or other documents
prepared by the Company in connection with the Exchange Offer or any;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability unless you shall
have been furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing or
qualifying any such action of any officer or agent of such other person
or persons as may be designated or whom you reasonably believe have been
designated by the Company;
(e) may consult with counsel satisfactory to you, including counsel
for the Company, and the advice of such counsel shall be full and
complete authorization and protection in respect in good faith and in
accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of the
Exchange Offer or as to the market value or decline or appreciation in
market value of any Old Capital Securities or New Capital Securities; and
(g) shall not be liable for any action which you may do or refrain
from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith.
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12. The Company covenants and agrees to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred in
connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best effort to notify the Company by letter, or
by cable, telex or telecopier confirmed by letter, of the written assertion of
a claim against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a
claim or shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, however, that
failure to so notify the Company shall not relieve the Company of any liability
which it may otherwise have hereunder except such liability that is a direct
result of such Indemnified Party's failure to so notify the Company. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
the Company assumes such defense, the Company shall not be liable for any fees
and expense thereafter incurred by such Indemnified Party, incurred as a result
of the need to have separate representation because of a conflict of interest
between such Indemnified Party and the Company. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other
person shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of
any such dispute and agree that delivery or mailing of any process or other
papers in the manner provided herein, or in such other manner as may be
permitted by law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without
an express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
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16. 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.
17. 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.
18. Unless terminated earlier by the parties hereto , this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Capital Securities or New Capital Securities,
funds or property then held by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified
or registered mail, postage prepaid, or telecopied as follows:
If to Company: Triangle Bancorp, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No:
Attn:
and a copy to:
Telecopier No.:
Attn:
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.:
Telephone: 212-250-
Telecopier: 000-000-0000/6961
and a copy to:
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
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20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
By:
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Title:
Agreed to this day of May, 1997
BANKERS TRUST COMPANY
By:
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Title:
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EXHIBIT B
[FORM OF TENDER DOCUMENTS]
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EXHIBIT C
[SCHEDULE OF FEES]
