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EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
___________, 2000
Wilmington Trust Company,
as Property Trustee of BFOH Capital Trust I
Corporate Trust Administration
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Ladies and Gentlemen:
BFOH 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 any and all of its outstanding 9.875% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security) (the "Original Capital
Securities") for its 9.875% Capital Securities, Series B (Liquidation Amount
$1,000 per Capital Security) (the "Exchange Capital Securities"). All of the
beneficial interests represented by common securities of the Trust are owned by
BancFirst Ohio Corp., an Ohio corporation (the "Corporation"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated ___________, 2000 (as the same may be amended or supplemented
from time to time, the "Prospectus"), to be distributed to all record holders of
the Original Capital Securities. A copy of the Prospectus is attached hereto as
Exhibit A. The Original Capital Securities and the Exchange Capital Securities
are collectively referred to herein as the "Securities." Capitalized terms used
but not defined herein shall have the same meaning given them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of
the Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients to be used in connection with the Exchange Offer are attached
hereto as Exhibit B.
The Trust hereby appoints the Property Trustee to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to the Property Trustee.
The Exchange Offer is expected to be commenced by the Trust on or about
___________, 2000. 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 Original Capital Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for
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___________, 2000
Original Capital Securities 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
___________, 2000 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 Original 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 caption
"The Exchange Offer -- Conditions to the Exchange Offer." The Trust will give
you prompt oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities.
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.
2. You will establish an account with respect to the Original
Capital Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer as soon as practicable, and any
financial institution that is a participant in the Book-Entry Transfer
Facility's system may make book-entry delivery of the Original Capital
Securities by causing the Book-Entry Transfer Facility to transfer such Original
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 Original Capital Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any other
documents received by you from or for holders of the Original Capital Securities
to ascertain whether: (i) on their face 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 Original 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 Original 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 such tendering holders 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.
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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
Original Capital Securities pursuant to the Exchange Offer.
5. Tenders of Original Capital 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 Original Capital
Securities," and Original 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, Original Capital
Securities that 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 Original Capital Securities received subsequent to the Expiration Date and
accept their instructions with respect to disposition of such Original Capital
Securities.
7. You shall accept tenders:
(a) in cases where the Original 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 such person's authority so
to act is submitted; and
(c) from persons other than the registered holder of Original Capital
Securities provided that customary transfer requirements are
fulfilled.
You shall accept partial tenders of Original Capital Securities where
so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Original Capital Securities to the transfer agent for division
and return any untendered Original Capital 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 Date, of
all Original Capital Securities properly tendered and you, on behalf of the
Trust, will exchange such Original Capital Securities for Exchange Capital
Securities provided to you by or on behalf of the Trust and cause such Original
Capital Securities to be canceled. Delivery of Exchange Capital Securities will
be made on behalf of the Trust by you at the rate of $1,000
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liquidation amount of Exchange Capital Securities for each $1,000 liquidation
amount of the corresponding series of Original Capital Securities tendered
promptly after notice (such notice, if given orally, to be confirmed in writing)
of acceptance of said Original Capital Securities by the Trust; provided,
however, that in all cases, Original Capital Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Original 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 documents. The Trust
shall issue Exchange Capital Securities only in denominations of $1,000 or any
integral multiple thereof. Original 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 Original Capital Securities are tendered
for exchange in part, the untendered liquidation 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, Original Capital 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 Original 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 Original
Capital Securities tendered shall be given orally (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 Original Capital 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 of Original Capital Securities not
accepted for exchange (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 Original Capital Securities,
unaccepted Original Capital Securities or Exchange Capital Securities shall be
forwarded (a) by first-class certified mail, return receipt requested, under a
blanket surety bond at the direction and expense of the Corporation protecting
you and the Trust from loss or liability arising out of the non-receipt or
non-delivery of such certificates; (b) by registered mail insured separately by
you at the expense of the Corporation, protecting you, the Corporation and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (c) by effectuating appropriate book-entry transfer.
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.
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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 Original Capital
Securities or Exchange Capital Securities represented thereby
deposited with you or issued 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 or the
Letter of Transmittal or any other disclosure materials delivered
in connection therewith;
(c) shall not be obligated to take any legal action hereunder; if,
however, you determine to take any legal action hereunder, and,
where the taking of such action might, in your judgment, subject
or expose you to any expense or liability, you shall not be
required to act unless you shall have been furnished with an
indemnity satisfactory to you;
(d) may rely on, and be fully authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice,
letter, telegram, telex, facsimile transmission or other document
or security delivered to you and 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 authorized and protected in acting or
failing to act upon the written, telephonic and oral instructions
with respect to any matter relating to you acting as Exchange
Agent covered by this Agreement (or supplementing or qualifying
any such actions) of officers of the Corporation;
(g) may consult with counsel satisfactory to you, including counsel
for the Trust, 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, provided that you shall promptly
notify the Corporation of any action taken or omitted by you in
reliance upon such advice or opinion;
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(h) are not authorized, and shall have no obligation, to pay any
brokers, dealers or soliciting fees to any person; and
(i) shall not advise any person tendering Original 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 Original Capital Securities.
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 or
such other forms as may be approved and provided to you 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: Kim M. Taylor.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Kim M. Taylor 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 by the Corporation or the Trust) up to and including the
Expiration Date, as to the aggregate liquidation amount of Original 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 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, 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 a final
list of all persons whose tenders were accepted, the aggregate liquidation
amount of Original Capital Securities tendered, the aggregate liquidation amount
of Original Capital Securities accepted and deliver said list to the Trust
promptly after the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery
received by you 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.
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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 the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in
connection with your services hereunder, within thirty days following receipt by
the Corporation of an itemized statement of such expenses and fees in reasonable
detail.
20.(a)The Trust covenants and agrees to indemnify and hold you
(which for purposes of this paragraph shall include your
directors, officers and employees) harmless in your individual
capacity and in your capacity as Exchange Agent hereunder from
and against any and all loss, liability, cost, damage, expense
and claim, including but not limited to reasonable attorneys'
fees and expenses, incurred by you as a result of, arising out of
or in connection with the performance by you of your duties under
this Agreement or the compliance by you with the instructions set
forth herein or delivered hereunder; provided, however, that the
Trust shall not be liable for indemnification or otherwise, or
hold you harmless, for any loss, liability, cost, damage, expense
or claim arising out of your bad faith, 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 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;
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. In the event that the Trust
shall properly 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 counsel thereafter retained by you. The Trust
shall not be liable under this paragraph for the fees and
expenses of more than one legal counsel for 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
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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.
21. The Trust understands that you are required in certain instances
to deduct 31% of the amounts to be paid with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital Securities from holders who have not supplied
their correct Taxpayer Identification Number or required certification. You will
remit any such funds to the Internal Revenue Service in accordance with
applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes
that you have actual knowledge are payable in respect of the exchange of
Original Capital Securities.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
Delaware 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, and no other person shall
have any rights hereunder.
24. 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.
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, 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.
27. 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 facsimile number set forth below:
If to the Trust: BFOH Capital Trust I
422 Main Street
Zanesville, OH 43701
Facsimile: (740) 455-5705
Attention: Kim M. Taylor
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If to the Exchange Agent: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Facsimile: (302) 651-1576
Attention: Corporate Trust Administration -
BFOH Exchange Offer
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 20 and 21 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.
29. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
BFOH Capital Trust I
By:
----------------------------------
Kim M. Taylor
Administrative Trustee
Accepted as the date first
above written:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Property Trustee, as Exchange Agent
By:
----------------------------------
Name:
Title:
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SCHEDULE I
FEES
WILMINGTON TRUST COMPANY
CORPORATE TRUST DEPARTMENT
SCHEDULE OF FEES
FOR
BFOH CAPITAL TRUST I
9.875% CAPITAL SECURITIES, SERIES B
[Wilmington Trust Company to Provide]
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