The Exchange Agent Agreement is essential when a company plans to conduct a securities exchange offer in the United States. This document establishes the legal framework for appointing a qualified financial institution to manage the exchange process, ensuring compliance with SEC requirements and federal securities laws. The agreement typically covers the agent's duties, compensation, liability limitations, and operational procedures for handling the exchange. It's particularly important in corporate restructuring, debt exchanges, and other securities transactions where existing securities are being exchanged for new ones.
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1. Parties: Identification of the exchange agent and the company/issuer
2. Background: Context of the exchange offer and appointment of the exchange agent
3. Definitions: Key terms used throughout the agreement including securities laws, banking regulations, and financial services terms
4. Appointment and Authority: Formal appointment of exchange agent and scope of authority under relevant securities and banking regulations
5. Duties and Responsibilities: Detailed description of exchange agent's obligations including compliance with securities laws, KYC/AML requirements, and reporting obligations
6. Compensation: Fee structure and payment terms for exchange agent services
7. Representations and Warranties: Statements of fact and guarantees by both parties regarding compliance with applicable laws and regulations
8. Term and Termination: Duration of agreement and termination provisions
9. Liability and Indemnification: Scope of liability limitations and indemnification obligations
10. Confidentiality: Provisions for handling confidential information and data protection requirements
11. Governing Law: Specification of applicable law and jurisdiction
1. Electronic Services: Terms for electronic exchange services and compliance with E-SIGN Act and UETA
2. Global Exchange Provisions: Terms for international exchanges and cross-border compliance requirements
3. DTC Procedures: Specific procedures for DTC-eligible securities and clearing house requirements
4. Force Majeure: Provisions for unforeseen circumstances affecting exchange services
1. Fee Schedule: Detailed breakdown of all fees and charges for exchange agent services
2. Operating Procedures: Detailed procedures for handling exchanges and compliance requirements
3. Form of Exchange Notice: Template for exchange notices and required documentation
4. Authorized Signatories: List of persons authorized to give instructions on behalf of each party
5. Service Level Agreement: Specific performance metrics and standards for exchange agent services
6. Compliance Requirements: Detailed regulatory compliance procedures and requirements
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