Exhibit 99.3
_______________, 1998
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Ladies and Gentlemen:
United Community Capital Trust, a Delaware statutory business trust (the
"Issuer"), proposes to make an offer (the "Exchange Offer") to exchange up to
$21,000,000 aggregate liquidation amount of its 8.125% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "New Capital Securities"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like liquidation amount of its outstanding 8.125%
Capital Securities (liquidation amount of $1,000 per Capital Security) (the "Old
Capital Securities"), of which $21,000,000 aggregate liquidation amount is
outstanding. The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated _______________, 1998 (the
"Prospectus"), a copy of which is attached to this Agreement as Attachment A,
proposed to be distributed to all record holders of the Old Capital Securities.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Issuer 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 Issuer on or about
_______________, 1998. 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 certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_______________, 1998 or on such later date or time to which the Issuer or
United Community Banks, Inc. (the "Company") may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set forth in the
Prospectus, the Issuer and the Company expressly reserve the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
The Issuer and the Company expressly reserve the right to 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
caption "Conditions to the Exchange Offer." The Issuer or the Company will give
oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance 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" and as
specifically set forth herein and such duties which are necessarily incidental
thereto; 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 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 or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you will identify
such preexisting account to be used in the Exchange Offer, 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, certificates for
Old Capital Securities and confirmations of book-entry transfers into your
account at the Book-Entry Transfer Facility and any Agent's Message or 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 fully 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 (i) for
fulfillment of all requirements and (ii) to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the Board and Chief
Executive Officer, the Chief Financial Officer, or the Secretary of the Company
(such approval, if given orally, to be confirmed in writing) or any other party
designated by the Issuer or such officer of the Company 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
section of the Prospectus captioned "The Exchange Offer--Procedures for
Tendering Old Capital Securities" or 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 Issuer or any other party designated by the Issuer in writing 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 Issuer 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 to so 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
untendered Old Capital Securities to the holder (or to 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 Issuer will notify you (such notice if given orally, to be promptly
confirmed in writing) of the Company's and Issuer's acceptance, promptly after
the Expiration Date, of all Old Capital Securities properly tendered and you, on
behalf of the Issuer, will exchange such Old Capital Securities for New Capital
Securities and cause such Old Capital Securities to be canceled. Delivery of New
Capital Securities will be made on behalf of the Issuer 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, to be promptly confirmed in writing) of acceptance of said Old
Capital Securities by the Issuer; 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 (or in lieu
thereof an Agent's Message) and any other required document. You shall issue New
Capital Securities only in denominations of $100,000 or any integral multiple of
$1,000 in excess thereof.
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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 on or prior to the Expiration Date.
10. The Company and the Issuer 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 Company and the Issuer not to
exchange any Old Capital Securities tendered shall be given (such notice, if
given orally, shall be promptly confirmed in writing) by the Company or the
Issuer to you.
11. If, pursuant to the Exchange Offer, the Company or the Issuer 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 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
Capital Securities (or effect the appropriate book-entry transfer of the
unaccepted Old Capital Securities), and return 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 Capital Securities or for unaccepted
Old Capital Securities shall be forwarded by (a) first-class mail, return
receipt requested, under a blanket surety bond protecting you, the Issuer and
the Company 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 such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of Old
Capital Securities, 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 your general duty to act in good faith be
discharged by the foregoing;
(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 Company or the Issuer 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 the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
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 or
oral instructions form the Issuer or any officer of the Company 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; and
(g) may consult with your counsel with respect to any questions
relating to your 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 by you hereunder in good faith and in
accordance with such written opinion of such counsel.
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15. You shall take such action as may from time to time be requested by
the Company, the Issuer or their 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, or such other forms as may be
approved from time to time by the Company or the Issuer, 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 Company or the Issuer 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 Chief Financial Officer of the Company at: 59
Highway 515, Blairsville, Georgia 30512; (706) 745-2151.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Issuer, the Company and Kilpatrick Stockton
LLP, counsel for the Company and the Issuer, and such other person or persons as
they may request, daily, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the principal amount of the 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 improperly received
and items covered by Notices of Guaranteed Delivery. In addition, you will also
inform, and cooperate in making available to, the Company and the Issuer or any
such other person or persons as the Company or the Issuer request from time to
time prior to the Expiration Date of such other information as they, or he
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company, the Issuer and such person as the Company or the
Issuer 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 Company and the Issuer shall have received information in
sufficient detail to enable them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose tenders were
not accepted and the aggregate principal amount of Old Capital Securities not
tendered or Old Capital Securities not accepted and deliver said list to the
Company and the Issuer at least seven days prior to the Expiration Date. You
shall also prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Capital Securities accepted and deliver said
list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $_______ and you shall be entitled to reimbursement of your
expenses (including fees and expenses of your counsel, which fees are expected
under normal circumstances to be not in excess of $5,000) incurred in connection
with the Exchange Offer. The obligations under this Section 18 shall constitute
joint and several obligations of the Issuer and the Company.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your duties hereunder. 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.
20. The Company and the Issuer jointly and severally agree to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorney's fees, arising out of
or in connection with the acceptance or administration of your duties hereunder,
including, without limitation, in connection with 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 the Company and the Issuer shall not
be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your negligence, willful breach of this
Agreement, willful misconduct or bad faith. In no case shall the Company and the
Issuer be liable under this indemnity with respect to any claim against you
unless the Company and the Issuer 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
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received any such written assertion or written notice of the commencement of any
such action. The Company and the Issuer shall be
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entitled to participate at their own expense in the defense of any such claim or
other action, and, if the Company and the Issuer so elect, the Company and the
Issuer shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company and the Issuer shall assume the defense of any
such suit, the Company and the Issuer shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company and the Issuer shall retain counsel reasonably satisfactory to you to
defend such suit. You shall not compromise or settle any such action or claim
without the consent of the Company and the Issuer.
21. 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.
22. 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
constitute one and the same agreement.
23. 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.
24. 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.
25. 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, at its address or telecopy
number set forth below:
If to the Company or the Issuer:
United Community Banks, Inc.
59 Highway 515
Blairsville, Georgia 30512
Phone: (706) 745-2151
Attention: Christopher Bledsoe, Chief Financial Office
With a copy to:
Kilpatrick Stockton LLP
1100 Peachtreet Street, Suite 2800
Atlanta, Georgia 30309-4530
Phone: (404) 815-6570
Attention: Richard R. Cheatham, Esq.
If to the Exchange Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile: (212) 946-8159
Attention: William Keenan, Trust Officer
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18 and 20 shall survive the termination of this Agreement. Except as
provided in Section 17, upon any termination of this Agreement, you shall
promptly deliver to the company any 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.
27. 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.
UNITED COMMUNITY CAPITAL TRUST
By:_______________________________
Name:
Title:
UNITED COMMUNITY BANKS, INC.
By:______________________________
Name:
Title:
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By:________________________________
Name:
Title:
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