Exhibit 99.3
FORM OF EXCHANGE AGENT AGREEMENT
_______, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ContiFinancial Corporation (the "Company"), a Delaware corporation, hereby
appoints The Chase Manhattan Bank ("Chase") to act as exchange agent (the
"Exchange Agent") in connection with an exchange offer by the Company to
exchange up to $200,000,000 aggregate principal amount of its 7 1/2% Senior
Notes Due 2002 (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), for a like principal
amount of its outstanding 7 1/2% Senior Notes Due 2002 (the "Old Notes" and
together with the New Notes, the "Notes"). The terms and conditions of the
exchange offer are set forth in a Prospectus dated March 25, 1997 (as the same
may be amended or supplemented from time to time, the "Prospectus") and in the
related Letter of Transmittal, which together constitute the "Exchange Offer."
The registered holders of the Notes are hereinafter referred to as the
"Holders." Capitalized terms used herein and not defined shall have the
respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company and Chase contained herein and subject to the terms and conditions
hereof, the following sets forth the agreement between the Company and Chase as
Exchange Agent for the Exchange Offer:
1. Appointment and Duties as Exchange Agent.
a. The Company hereby authorizes Chase to act as Exchange Agent in
connection with the Exchange Offer and Chase agrees to act as Exchange Agent in
connection with the Exchange Offer. As Exchange Agent, Chase will perform those
services as are outlined herein or which are customarily performed by an
exchange agent in connection with an exchange offer of like nature, including,
but not limited to, accepting tenders of Old Notes, assisting the Company in the
preparation of the documentation necessary to effect the transactions herein
contemplated (without assuming responsibility for such documentation, unless
such information has been furnished to the Company in writing by Chase) and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Old Notes.
b. The Company acknowledges and agrees that Chase has been retained
pursuant to this Agreement to act solely as Exchange Agent in connection with
the Exchange Offer, and in such capacity, Chase shall perform such duties as are
outlined herein and which are specifically set forth in the section of the
Prospectus captioned "The Exchange Offer" and in the Letter of Transmittal;
provided, however, that in no way will Chase's general duty to act in good faith
and without gross negligence or willful misconduct be discharged by the
foregoing.
▇. ▇▇▇▇▇ will examine each of the Letters of Transmittal and certificates
for Old Notes and any other documents delivered or mailed to Chase by or for
Holders of the Old Notes, and any book-entry confirmations (as defined in the
section of the Prospectus captioned "The Exchange Offer--Acceptance For Exchange
and Issuance of New Notes") received by Chase with respect to the Old Notes, to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with the instructions set
forth therein and that such book-entry confirmations are in due and proper form
and contain the information required to be set forth therein, and (ii) the Old
Notes have otherwise been properly tendered. In each case where the Letters of
Transmittal or any other documents have been improperly completed or executed or
where book-entry confirmations are not in due and proper form or omit certain
information, or any of the certificates for Old Notes are not in proper form for
transfer or some other irregularity in connection with the tender or acceptance
of the Old Notes exists, Chase will endeavor, subject to the terms and
conditions of the Exchange Offer, to advise the tendering Holders of the
irregularity, and if such irregularity is not corrected, to advise the Company
of the same, and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected. Notwithstanding the above, Chase shall
not be under any duty to give any notification of any irregularities in tenders
or incur any liability for failure to give any such notification.
d. With the approval of the President, any Senior Vice President, any
Executive Vice President, any Vice President or the Treasurer or any Assistant
Treasurer of the Company, (such approval, if given orally, to be confirmed in
writing) or any other party designated by any such officer, Chase is authorized
to waive any irregularities in connection with any tender of Old Notes pursuant
to the Exchange Offer.
e. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer"
and Old Notes shall be considered properly tendered only when tendered in
accordance with such procedures set forth therein. Notwithstanding the
provisions of this paragraph, Old Notes which the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer,
any Assistant Treasurer or any other designated officer of the Company, shall
approve (such approval, if given orally, to be confirmed in writing in an
Officers' Certificate) as having been properly tendered shall be considered to
be properly tendered.
▇. ▇▇▇▇▇ shall advise the Company with respect to any Old Notes received
as soon as possible after 5:00 p.m., New York City time, on June 11, 1997 and
accept its instructions with respect to disposition of such Old Notes.
▇. ▇▇▇▇▇ shall ensure (i) that Old Notes tendered in part are tendered in
principal amounts of $1,000 and integral multiples thereof and that if any Old
Notes are tendered or exchange in part, the untendered principal amount thereof
is $100,000 or any integral multiple of $1,000 in excess thereof; and (ii) that
Chase shall deliver certificates for Old Notes tendered
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in part to the transfer agent for split-up and shall return any untendered Old
Notes or Old Notes which have not been accepted by the Company to the Holders
promptly after the expiration or termination of the Exchange Offer.
h. Upon acceptance by the Company of any Old Notes duly tendered pursuant
to the Exchange Offer (such acceptance, if given orally, to be confirmed in
writing), Chase will cause New Notes in exchange therefor to be issued as
promptly as possible (subject to receipt from the Company of appropriate
certificates under the related Indenture) and Chase will deliver such New Notes
on behalf of the Company at the rate of $1,000 principal amount of New Notes for
each $1,000 principal amount of Old Notes tendered as promptly as possible after
acceptance by the Company of the Old Notes for exchange and notice (such notice,
if given orally, to be confirmed in writing) of such acceptance by the Company;
provided, however, that in all cases, Old Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by Chase of
certificates for such Old Notes (or a book-entry confirmation), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees and any other required documents. Chase shall
issue New Notes only in denominations of $1,000 or any integral multiple thereof
unless otherwise instructed by the Company in writing.
i. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in accordance with the
terms of the Exchange Offer.
j. Notice of any decision by the Company not to exchange any Old Notes
tendered shall be given by the Company either orally (if given orally, to be
confirmed in writing) or in a written notice.
k. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes 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, Chase
shall, upon notice from the Company (such notice if given orally, to be
confirmed in writing), promptly after the expiration or termination of the
Exchange Offer return such certificate for unaccepted Old Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in Chase's possession,
to the persons who deposited such certificates.
▇. ▇▇▇▇▇ is not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, commercial bank, trust
company or other nominee or to engage or use any person to solicit tenders.
m. As Exchange Agent, Chase:
(i) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or
herein or as may be subsequently agreed to in writing by Chase and the
Company;
(ii) will make no representations and will have no responsibilities
as to the validity, sufficiency, value or genuineness of any of the
certificates for the Old Notes
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deposited 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; provided, however, that in no way will Chase's general
duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing;
(iii) shall not be obligated to take any legal action hereunder
which might in Chase's reasonable judgment involve any expense or
liability, unless Chase shall have been furnished with reasonable
indemnity from the Company satisfactory to Chase;
(iv) may reasonably rely on and shall be fully authorized and
protected in acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram, facsimile or other document or security
delivered to Chase and reasonably believed by Chase to be genuine and to
have been signed by the proper party or parties;
(v) 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 Chase believes in
good faith to be genuine and to have been signed or represented by a
proper person or persons acting in a fiduciary or representative capacity
(so long as proper evidence of such fiduciary's or representative's
authority so to act is submitted to Chase) and Chase examines and
reasonably concludes that such evidence properly establishes such
authority;
(vi) may rely on and shall be protected in acting upon written or
oral instructions from the President, any Senior Vice President, any
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer or any other designated officer of the Company;
(vii) may consult with its own counsel with respect to any questions
relating to Chase's duties and responsibilities and the written 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 Chase
hereunder in good faith and in accordance with the written opinion of such
counsel; and
(viii) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all
or any portion of its Old Notes or as to the market value, decline or
appreciation in market value of any Old Notes that may or may not occur as
a result of the Exchange Offer or as to the market value of the New Notes.
Chase shall take such action as may from time to time be requested by the
Company (and such other action as Chase 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 Company, 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 tendering into (or withdrawing from) the Exchange Offer.
The Company will furnish you with copies of such documents at your
request.
▇. ▇▇▇▇▇ shall advise orally and promptly thereafter confirm in writing to
the Company and such other person or persons as the Company may request, daily
(and more
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frequently during the week immediately preceding the Expiration Date and if
otherwise reasonably requested) up to and including the Expiration Date, the
aggregate principal amount of Old Notes which have been duly tendered pursuant
to and in compliance with the terms of the Exchange Offer and the items received
by Chase pursuant to the Exchange Offer and this Agreement, separately reporting
and giving cumulative totals as to items properly received and items improperly
received. In addition, Chase will also provide, and cooperate in making
available to the Company, or any such other person or persons upon request (such
request if made orally, to be confirmed in writing) made from time to time, such
other information as the Company may reasonably request. Such cooperation shall
include, without limitation, the granting by Chase to the Company, and such
person or persons as the Company may request, access to those persons on Chase's
staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
adequate information in sufficient detail to enable the Company to decide
whether to extend the Exchange Offer. Chase shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Old Notes
tendered, the aggregate principal amount of Old Notes accepted and deliver said
list to the Company.
o. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by Chase as to the date and the time of
receipt thereof and shall be preserved by Chase for a period of time at least
equal to the period of time Chase preserves other records pertaining to the
transfer of securities, or one year, whichever is longer, and thereafter shall
be delivered by Chase to the Company. Chase shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
▇. ▇▇▇▇▇ hereby expressly waives any lien, encumbrance or right of set-off
whatsoever that Chase may have with respect to funds deposited with it 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
agreement with Chase.
2. Compensation. The Company shall compensate Chase for its services as Exchange
Agent in the amount of $5000; provided, further, that Chase reserves the right
to receive reimbursement from the Company for any reasonable out-of-pocket
expenses incurred as Exchange Agent in performing the services described herein,
including, reimbursement for the fees and disbursements of its legal counsel in
connection therewith.
3. Indemnification.
a. The Company hereby agrees to protect, defend, indemnify and hold
harmless Chase against and from any and all costs, losses, liabilities, expenses
(including reasonable counsel fees and disbursements) and claims imposed upon or
asserted against Chase on account of any action taken or omitted to be taken by
Chase in connection with its acceptance of or performance of its duties under
this Agreement and the documents related thereto as well as the reasonable costs
and expenses of defending itself against any claim or liability arising out of
or relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination, and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
Chase's bad faith, gross negligence or willful misconduct. Chase shall notify
the Company by letter of the written assertion of a claim against Chase or of
any other action commenced against Chase for which
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Chase may seek indemnification from the Company promptly after Chase shall have
received any such written assertion or shall have been served with a summons in
connection therewith. Failure by Chase to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall be entitled
to participate at its own expense in the defense of any such claim or other
action and Chase shall be entitled to retain its own counsel to defend any
action or claim against Chase; provided, however, the fees and expenses of such
counsel shall be paid by Chase unless (i) the employment of such counsel shall
have been authorized in writing by the Company, (ii) the Company shall not have
employed counsel to have charge of the defense of such action within 10 days
after notice of commencement of the action, or (iii) Chase shall have reasonably
concluded that there may be many defenses available to it which are different
from or additional to those available to the Company, in any of which events
such fees and expenses shall be paid by the Company.
b. The Company shall not be liable for any settlement of any claim or
action in respect of which indemnification could be sought in accordance with
the indemnification provision of this Agreement (whether or not Chase or the
Company or any of its directors, officers and controlling persons is an actual
or potential party to such claim, action or proceeding), except with its written
consent, which consent shall not be unreasonably withheld.
4. Tax Information.
▇. ▇▇▇▇▇ 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 Chase is required, in certain instances,
to deduct 31% with respect to interest paid on the New Notes and proceeds from
the sale, exchange, redemption or retirement of the New Notes from Holders who
have not supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over by Chase to the Internal Revenue
Service.
▇. ▇▇▇▇▇ shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of written
approval from the Company 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 Notes, a check in the amount of all transfer
taxes so payable, and the Company shall reimburse Chase for the amount of any
and all transfer taxes payable in respect of the exchange of Old Notes;
PROVIDED, HOWEVER, that Chase shall reimburse the Company for amounts refunded
to it in respect of its payment of any such transfer taxes, at such time as such
refund is received by Chase.
5. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that state.
6. Notices. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
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If to the Company:
ContiFinancial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Counsel
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to The Chase Manhattan Bank
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. Parties in Interest. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement. Without
limitation to the foregoing, the parties hereto expressly agree that no holder
of Old Notes or New Notes shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. Counterparts; Severability. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which when so executed shall be deemed an original, and all of such counterparts
shall together constitute one and the same agreement. If any term or other
provision of this Agreement or the application thereof is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
provisions of this Agreement shall nevertheless remain in full force and effect
so long as
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the economic or legal substance of the agreements contained herein is not
affected in any manner adverse to any party. Upon such determination that any
term or provision or the application thereof is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
9. Captions. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. Entire Agreement; Amendment. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any provision hereof be
waived except in writing signed by each party to be bound thereby.
11. Termination. This Agreement shall terminate upon the earlier of (a) the 90th
day following the expiration, withdrawal, or termination of the Exchange Offer,
(b) the close of business on the date of actual receipt of written notice by
Chase from the Company stating that this Agreement is terminated, (c) one year
following the date of this Agreement, or (d) the time and date on which this
Agreement shall be terminated by mutual consent of the parties hereto.
12. Miscellaneous. Chase hereby acknowledges receipt of the Prospectus and the
Letter of Transmittal and the Notice of Guaranteed Delivery and further
acknowledges that it has examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal and
the Notice of Guaranteed Delivery (as they may be amended or supplemented from
time to time), on the other hand, shall be resolved in favor of the latter three
documents, except with respect to the duties, liabilities and indemnification of
Chase as Exchange Agent which shall be controlled by this Agreement.
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Kindly indicate your willingness to act as Exchange Agent and
Chase's acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Chase's acceptance shall constitute a
binding agreement between Chase and the Company.
Very truly yours,
CONTIFINANCIAL CORPORATION
By:
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Name:
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Title: Authorized Signatory
By:
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Name:
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Title: Authorized Signatory
Accepted and agreed to as of
the date first written above:
THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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