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EXHIBIT 99.3
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EXCHANGE AGENT AGREEMENT
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
AMCORE Capital Trust I, a business trust formed under the laws of the
State of Delaware (the "Trust"), proposes to make an offer (the "Exchange
Offer") to exchange its 9.35% Series A Capital Securities (Liquidation Amount
$1,000 per Capital Security) (the "Old Securities") for its 9.35% Series B
Capital Securities (Liquidation Amount $1,000 per Capital Security) (the "New
Securities"). All of the beneficial interests represented by common securities
of the Trust are owned by AMCORE Financial, Inc., a Nevada corporation (the
"Corporation"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated _____ __, 1997 (the
"Prospectus"), to be distributed to all record holders of the Old Securities.
The Old Securities and the New Securities are collectively referred to herein
as the "Securities."
The Trust hereby appoints The First National Bank of Chicago to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The First National Bank of
Chicago.
The Exchange Offer is expected to be commenced by the Trust on or about
_____ ___, 1997. 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 Old Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Old
Securities
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tendered in connection therewith and (ii) 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, 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 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 Old 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
oral (confirmed in writing) or written notice of any amendment, termination or
nonacceptance of Old Securities to you promptly after any 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 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 Old 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
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may make book-entry delivery of the Old Securities by causing the Book-Entry
Transfer Facility to transfer such Old 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 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 Old 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 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 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 any Administrative Trustee 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 Administrative Trustee or Designated Officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Old Securities pursuant to the Exchange Offer.
5. Tenders of Old 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 Old Capital Securities," and Old
Securities shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
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Notwithstanding the provisions of this paragraph 5, Old Securities
which any Administrative Trustee 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
Old Securities received subsequent to the Expiration Date and accept their
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old 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 Old
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the transfer agent for split-up and return any untendered Old
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
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Date, of all Old Securities properly tendered and you, on behalf of the Trust,
will exchange such Old Securities for New Securities and cause such Old
Securities to be canceled. Delivery of New Securities will be made on behalf
of the Trust by you at the rate of $1,000 liquidation amount of New Securities
for each $1,000 liquidation amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Old Securities by the Trust;
provided, however, that in all cases, Old Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old 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 Securities only in denominations of $1,000 or any integral multiple
thereof. Old 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 Old 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, Old 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 Old 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 Securities tendered
shall be given orally (and confirmed in writing) by the Trust to you.
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11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Old 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 Old 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 Securities, unaccepted Old
Securities or for New Securities shall be forwarded by (a) 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 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 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 Old Securities represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and will
make no representation
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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,
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 Administrative Trustee of the Trust or from any
Designated Officer of the Corporation;
(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 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
Securities.
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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 (as
defined in the Prospectus) 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: Xxxx X. Xxxxx.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxx X. Xxxxx 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 Old 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 of 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
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a final list of all persons whose tenders were accepted, the aggregate
principal amount of Old Securities tendered, the aggregate principal amount of
Old 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. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Trust at the address set forth below for notices.
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 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. (a) The Trust covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability,
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cost or expense, including reasonable 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 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 Securities; provided, however, that the
Trust shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent 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 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 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. In the event that 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 additional counsel thereafter retained by you so long
as you consent to the Trust's retention of counsel, which consent may not be
unreasonably withheld; 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. It is understood that the
Trust shall not be liable under this paragraph for the fees and expenses of
more than one legal counsel for you. In the event that the Trust shall assume
the defense of any such suit,
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the Trust shall not thereafter be liable for the fees and expenses of any
counsel retained by 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.
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 Trust understands that you are required in
certain instances to deduct 31% with respect to interest paid on the New
Securities and proceeds from the sale, exchange, redemption or retirement of
the New 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.
23. You shall notify the Trust of the amount of any transfer taxes
payable in respect of the exchange of Old 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 Old 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 Old
Securities; provided, however, that you shall reimburse the Trust for
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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 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.
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, 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.
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 Trust:
AMCORE Capital Trust I
c/o AMCORE Financial, Inc.
000 Xxxxxxx Xxxxxx
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Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxxx
If to the Exchange Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
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 Trust 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.
AMCORE CAPITAL TRUST I
By:
------------------------------------
Name: Xxxx X. Xxxxx
Title: Administrative Trustee
Accepted as the date
first above written:
THE FIRST NATIONAL BANK OF CHICAGO,
as Exchange Agent
By:
----------------------------
Name:
Title:
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