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EXHIBIT 99.3
June 10, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Advanta Capital Trust I (the "Trust") proposes to make an offer (the
"Exchange Offer") to exchange its 8.99% Series A Capital Securities (the "Old
Capital Securities") for its registered 8.99% Series B Capital Securities (the
"New Capital Securities"), respectively. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
June 12, 1997 (the "Prospectus"), proposed 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 "Capital
Securities" or the "Securities".
The Trust hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Trust on or about
June 13, 1997. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Old Capital Securities to accept the Exchange Offer,
and contains instructions with respect to the delivery of certificates for Old
Capital Securities tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
July 14, 1997 or on such later date or time to which the Trust may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Trust and Advanta Corp. (the "Corporation")
expressly reserve
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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 5:00 p.m., New York City time, on the business day following the
previously scheduled Expiration Date.
The Trust and the Corporation expressly reserve the right to delay,
amend or terminate the Exchange Offer, and not to accept for exchange any Old
Capital Securities not theretofore accepted for exchange, upon the occurrence of
any of the conditions of the Exchange Offer specified in the Prospectus under
the captions "The Exchange Offer -- Terms of the Exchange Offer" and
"-- Conditions to the Exchange Offer". The Trust or the Corporation will give to
you as promptly as practicable oral (confirmed in writing) or written notice of
any delay, amendment, termination or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein and such duties which are necessarily incidental
thereto.
2. You will establish an account with respect to the Old Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Capital Securities by causing the Book-Entry Transfer Facility to transfer such
Old Capital Securities into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Capital Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Capital Securities to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein and (ii) the Old Capital Securities have otherwise been properly
tendered. In each case where the Letter of Transmittal or any other document has
been improperly completed or executed or any of the certificates for Old Capital
Securities are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offer exists you will endeavor to
inform the presenters of the need for fulfillment of all requirements and to
take any
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other action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the Chairman of the Board, the President, or
any Vice President of the Corporation or any administrative trustee of the Trust
(such approval, if given orally, promptly to be confirmed in writing) or any
other party designed by such officer in writing, you are authorized to waive
any irregularities in connection with any tender of Old Capital Securities
pursuant to the Exchange offer.
5. Tenders of Old Capital Securities may be made only as set forth in
the Letter of Transmittal and Old Capital Securities shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Capital
Securities which the Chairman of the Board, the President or any Vice President
of the Corporation or any other party designated by any such officer in writing
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, promptly shall be confirmed
in writing).
6. You shall advise the Corporation with respect to any Old Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are registered in two
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
indentured Old Capital Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as
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practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify you (such notice if given orally, promptly to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Capital Securities properly tendered and you, on behalf of the Trust,
will exchange such Old Capital Securities for New Capital Securities and cause
such Old Capital Securities to be cancelled. Delivery of New Capital Securities
will be made on behalf of the Trust by you at the rate of $1,000 liquidation
amount of New Capital Securities for each $1,000 liquidation amount of the Old
Capital Securities tendered promptly after notice (such notice if given orally,
promptly to be confirmed in writing) of acceptance of said Old Capital
Securities by the Trust; provided, however, that in all cases, Old Capital
Securities tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Capital Securities (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees and any other required
document. You shall issue New Capital Securities only in aggregate liquidation
amounts 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 Trust shall not be required to exchange any Old Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Trust not to exchange any Old Capital
Securities tendered shall be given (such notices if given orally, promptly shall
be confirmed in writing) by the Trust or the Corporation to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Old Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the captions "The Exchange Offer -- Terms of the Exchange
Offer" and "-- Conditions to the Exchange Offer" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Old Capital Securities (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of
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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 mail, postage pre-paid under a blanket surety bond protecting you
and the Trust from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Capital Securities represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the Exchange
Offer;
(b) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Trust or the Corporation for any
action taken or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your part, by reason of
or as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith
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reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions from any officer of the Corporation or any
administrative trustee of the Trust with respect to the Exchange Offer;
(f) shall not advise any person tendering Old Capital Securities
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old Capital
Securities;
(g) may consult with counsel and the written advice or opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by you hereunder in good faith and in
reliance thereon.
15. You shall send to all holders of Old Capital Securities a copy of
the Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
defined in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Trust or the Corporation to
commence the Exchange Offer and take such other action as may from time to time
be requested by the Trust or the Corporation or its counsel (and such other
action as you may reasonably deem appropriate) to furnish copies of the Exchange
Offer Documents or such other forms as may be approved from time to time by the
Trust or the Corporation, to all holders of Old Capital Securities and to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Corporation 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 Corporation, Attention: ________, at the
Corporation's offices at Welsh & XxXxxx Roads, X.X. Xxx 000, Xxxxxx Xxxxx,
Xxxxxxxxxxxx 00000, telephone (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to ________ of the Corporation, and such
other person or persons as the Trust may request in writing, not later than 7:00
p.m., New York City time, each business day, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the number of Old
Capital Securities which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items
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improperly received. In addition, you will also inform, and cooperate in making
available to, the Trust or any such other person or persons as the Corporation
requests in writing from time to time prior to the Expiration Date of such other
information as it reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Corporation and such person as 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 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 Old Capital Securities tendered and the aggregate
principal amount of Old Capital Securities accepted and deliver said list to the
Corporation.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
customarily preserve other records pertaining to the transfer of securities. You
shall dispose of unused Letters of Transmittal and other surplus materials in
accordance with your customary procedures.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Corporation, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses as set
forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent which shall be controlled by this Agreement.
21. Each of the Trust and the Corporation, jointly and severally,
agrees to indemnify and hold you harmless in your capacity as Exchange Agent
hereunder against any liability, cost
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or expense, including reasonable attorneys' fees and expenses, arising out of or
in connection with your appointment as Exchange Agent and the performance of
your duties hereunder, including, without limitation, any act, omission, delay
or refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Capital Securities
reasonably believed by you in good faith to be authorized, and in delaying or
refusing in good faith to accept any tenders or effect any transfer of Old
Capital Securities; provided, however, that neither the Trust nor the
Corporation shall be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
misconduct or bad faith.
22. You shall deliver or cause to be delivered, in a timely manner, to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Capital Securities your check in the amount of all
transfer taxes so payable, and the Corporation shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of Old
Capital Securities; provided, however, that you shall reimburse the Trust for
amounts refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall insure to
the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized
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representative of the party to be charged. This Agreement may not be modified
orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, as its address or telecopy
number set forth below:
If to the Trust or the Corporation:
Advanta Corp.
Welsh & XxXxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Facsimile:
Attention:
If to the Exchange Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Sheik Wiltshire
Second Vice President
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days follow the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Corporation any certificates for Old Capital Securities, funds or property
(including, without limitation, Letters of Transmittal and any other documents
relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement.
29.This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ADVANTA CAPITAL TRUST I
By:/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Administrative Trustee
ADVANTA CORP.
By:/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
Accepted as the date
first above written:
THE CHASE MANHATTAN BANK
By: /s/ Sheik Wiltshire
-------------------
Name: Sheik Wiltshire
Title: Second Vice President
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