EXHIBIT 99.3
September ___, 1999
EXCHANGE AGENT AGREEMENT
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The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
Allfirst Preferred Capital Trust (the "Trust") proposes to make an offer
(the "Exchange Offer") to exchange its Floating Rate Non-Cumulative Subordinated
Capital Trust Enhanced Securities previously issued on July 13, 1999 ("Old
SKATES") for its new Floating Rate Non-Cumulative Subordinated Capital Trust
Enhanced Securities that have been registered under the Securities Act of 1933,
as amended ("New SKATES"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated [September] ___,
1999 (the "Prospectus"), proposed to be distributed to all record holders of the
Old SKATES. The Old SKATES and the New SKATES are collectively referred to
herein as the "Securities".
The Trust hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Trust on or about
[September] ___, 1999. 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 SKATES to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Old SKATES tendered in
connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
[October] ___, 1999, 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 and may extend the Exchange Offer by giving
oral (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 SKATES 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 -- Certain Conditions to the Exchange Offer." The
Trust will give oral (confirmed in writing) or written notice of any amendment,
termination or non-acceptance to you as promptly as practicable.
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 SKATES 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 SKATES by causing the
Book-Entry Transfer Facility to transfer such Old SKATES 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 SKATES (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 SKATES 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
SKATES 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 SKATES 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 Administrator of the Trust (such approval, if
given orally, to be confirmed in writing) or any other party designated by such
an officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old SKATES pursuant to the Exchange Offer.
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5. Tenders of Old SKATES 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 SKATES 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 SKATES which any
Administrator of the Trust 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 with respect to any Old SKATES received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old SKATES.
7. You shall accept tenders:
(a) in cases where the Old SKATES 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;
(c) in a minimum liquidation amount of $100,000 (100 SKATES) or any
integral multiple of $1,000 in excess thereof; and
(d) from persons other than the registered holder of Old SKATES, provided
that customary transfer requirements, including payment of any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old SKATES where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old SKATES
to the transfer agent for split-up and return any untendered Old SKATES 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 Old
SKATES properly tendered and you, on behalf of the Trust, will exchange such Old
SKATES for New SKATES and cause such Old SKATES to be cancelled. Delivery of New
SKATES will be made on behalf of the Trust by you
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at the rate of $1,000 liquidation amount of New SKATES for each $1,000
liquidation amount of the corresponding series of Old SKATES tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old SKATES by the Trust; provided, however, that in all
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cases, Old SKATES tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Old SKATES (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 SKATES only in denominations of $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 SKATES 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 SKATES 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 SKATES tendered shall be given
(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 Old SKATES 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 as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old SKATES (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 SKATES, unaccepted Old SKATES or for
New SKATES 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;
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,
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bank or other person 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 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 SKATES 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;
(c) shall not be obligated to take any legal action hereunder which might
in your reasonable judgement 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, 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
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;
(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 SKATES pursuant to the
Exchange Offer as to the wisdom of making such
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tender or as to the market value or decline or appreciation in market value of
any Old SKATES.
15. You shall take such action as may from time to time be requested by
the Trust or its counsel (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, 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: David M. Cronin, Administrator.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to David M. Cronin, Administrator, of the Trust
and such other person or persons as it 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
SKATES 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 any such other person or persons upon oral request made from time to
time prior to the Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Trust and such person as the Trust 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 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 SKATES tendered,
the aggregate principal amount of Old SKATES accepted and deliver said list to
the Trust.
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
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dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Trust.
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. The Trust covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including 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 SKATES 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 SKATES; provided, however, that the Trust shall not
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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 shall assume the defense of any suit brought to enforce any such claim. In
the event that the Trust shall assume
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the defense of any such suit, the Trust shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Trust shall retain counsel satisfactory to you to defend such suit.
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 to deduct 31% on payments
to 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 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 SKATES, 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 SKATES; provided,
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however, that you shall reimburse the Trust for amounts refunded to you in
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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 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.
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, cancelled 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.
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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:
Allfirst Preferred Capital Trust
25 S. Charles Street
Mailcode 101-870
Baltimore, Maryland 21201
Facsimile: (410) 244-4459
Attention: David M. Cronin
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee Administration
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.
ALLFIRST PREFERRED CAPITAL TRUST
By: ______________________________
David M. Cronin
Administrator
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: _________________________
Name:
Title:
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