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EXHIBIT 99.3
November , 1997
EXCHANGE AGENT AGREEMENT
State Street Bank and Trust Company
Corporate Trust Administration, CT/OP/0238
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx
Vice President
Dear Xx. XxXxxxxx:
InterAmericas Communications Corporation, a Texas corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange up to
$150,000,000 aggregate principal amount of its 14% Senior Notes due October 27,
1007 (the "New Notes"), for a like principal amount of its outstanding 14%
Senior Subordinated Notes due October 27, 2007 (the "Existing Notes"). The terms
and conditions of the Exchange Offer are set forth in a prospectus (the
"Prospectus") included in the Company's registration statement on Form S-4 (File
No. 333-_____), as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC"), proposed to be distributed to
all record holders of the Existing Notes. The Existing Notes and the New Notes
are collectively referred to herein as the "Notes." Capitalized terms used
herein and not defined shall have the respective meanings ascribed to them in
the Prospectus.
The Company hereby appoints State Street Bank and Trust Company to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer no State Street Bank and Trust
Company.
The Exchange Offer is expected to be commenced by the Company on or
about December , 1997. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Existing Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for New Notes
tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on January ,
1997, or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company 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 next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any New
Notes not theretofore accepted for exchange. The Company will give oral
(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", in the Letter of Transmittal accompanying the Prospectus or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
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2. You will establish an account with respect to the New Notes 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 New Notes by causing the
Book-Entry Transfer Facility to transfer such New Notes into your account in
accordance with the Book-Entry Transfer Facility's procedures for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Existing Notes (and confirmation of book-entry transfers of
Existing Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the New Notes,
to ascertain whether: (i) the Letters of Transmittal, certificates and any such
other documents are duly executed and properly completed in accordance with
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 Existing Notes have otherwise been properly tendered. In each case
where the Letter of Transmittal or any other document has 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 Existing
Notes 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 the Chairman, the President and Chief
Executive Officer, the Chief Financial Officer (such approval, if given orally,
to be confirmed in writing) or any other person designated by such an officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Existing Notes pursuant to the Exchange Offer.
5. Tenders of Existing Notes 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", and Existing Notes 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, Existing
Notes which the Chairman, President and Chief Executive Officer or the Chief
Financial Officer or any other officer of the Company designated by any such
person 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 Company with respect to any Existing
Notes received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Existing Notes.
7. You shall accept tenders:
(a) in cases where the Existing Notes 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; and
(c) from persons other than the registered holder of Existing
Notes provided that customary transfer requirements, including those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Existing Notes when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Existing Notes to the transfer agent for split-up
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and return any untendered Existing Notes 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 Company will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Existing Notes properly tendered and you, on behalf of the Company, will
exchange such Existing Notes for New Notes and cause such Existing Notes to be
canceled. Delivery of New Notes will be made on behalf of the Company by you at
the rate of $1,000 principal amount of New Notes for each $1,000 principal
amount of the Existing Notes tendered promptly after notice (such notice if
given orally, to be confirmed in writing) of acceptance of said Existing Notes
by the Company; provided, however, that in all cases, Existing Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Existing Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and, except as described in the section of the prospectus captioned
"The Exchange Offer-Procedures for Tendering", duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company, you
shall issue New Notes only in denominations of $1,000 or any integral multiple
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, Existing 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.
10. The Company shall not be required to exchange any Existing
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Existing Notes
tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Existing Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus or otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates for unaccepted
Existing Notes (or effect appropriate book-entry transfer), together with any
related required documents and the Letter of Transmittal relating thereto that
are in you possession, to the persons who deposited them (or effected such
book-entry transfer).
12. All certificates for reissued Existing Notes, unaccepted
Existing Notes or for New Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class certified mail, return receipt
requested, under a blanket surety bond obtained by you protecting you and the
Company form loss or liability arising out of the nonreceipt or nondelivery of
such certificates or (b) by registered mail insured by you 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 other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
14. As Exchange Agent hereunder, you:
(a) 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 you and the Company;
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(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 for the Existing Notes 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 judgment 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 officer of the company;
(g) may consult with you 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 to be taken by you hereunder in good faith
and in accordance with the written opinion of such counsel; and
(h) shall not advise any person tendering Existing Notes
pursuant to the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of Existing Notes or as to the market value, decline or
appreciation in market value of any Existing Notes that may or not occur as a
result of the Exchange Offer or as to the market value of the New Notes;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
15. You shall take such action as may from time to time be
requested by the Company 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 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 accepting (or withdrawing
from ) the Exchange Offer. The Company will furnish you with copies of such
documents at your request.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxx, XX, the Chief
Financial Officer of the Company (telephone number 305/000-0000, facsimile
number 305/377-6791 and such other person or persons as the Company 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 aggregate principal amount of Existing Notes which have been duly tendered
pursuant to the Exchange Offer and the items received by you 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,
you will also inform, and cooperate in making available to, the Company 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
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cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company 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 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 New Notes tendered, the aggregate
principal amount of New Notes accepted and the identity of any Participating
Broker-Dealers and the aggregate principal amount of New Notes delivered to
each, and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices
of Guaranteed Delivery received by you 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, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials as instructed by the Company.
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
Company, 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 Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorney's 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 Existing Notes 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 New Notes; provided, however, that 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 your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is 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 Company shall be entitled to participate, at its own expense, in the
defense of any such claim or other action, and, if the company so elects, the
Company may assume the defense of any pending or threatened action against you
in respect of which indemnification may be sought hereunder, in which case the
Company shall not thereafter be responsible for the subsequently incurred fees
and disbursements of legal counsel for you under this paragraph so long as the
Company shall retain counsel reasonably satisfactory to you to defend such suit;
provided, that the Company shall not be entitled to assume the defense of any
such action if the named parties to such action include both you and the Company
and representation of both parties by the same legal counsel would, in the
written opinion of your counsel, be inappropriate due to actual or potential
conflicting interests between you and the Company. You understand and agree that
the company shall not be liable under this paragraph for the fees and expenses
of more than one legal counsel for you.
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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 Company understands that you are required, in certain
instances, to deduct [thirty-one percent (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
to the Internal Revenue Service in accordance with applicable regulations.
23. You shall notify the Company of the amount of any transfer
taxes payable in respect of the exchange of Existing Notes and, upon receipt of
a written approval form 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 Existing Notes, your check in the amount
of all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Existing Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in 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.
25. 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 of the foregoing, the parties hereto expressly agree that no holder
of Existing Notes or New Notes shall have any right, benefit or remedy of any
nature whatsoever under, or by reason of, this Agreement.
26. 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.
27. 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.
28. 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.
29. 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:
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If to the Company, to:
InterAmericas Communications Corporation
0000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxx, XX 00000
Telephone: 305/000-0000
Telecopy: 305/377-6791
Attention: Xxxxxxx X. Xxxx, XX
Chief Financial Officer
With a copy to:
Xxxxx & XxXxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Telephone: 305/000-0000
Telecopy: 305/789-8953
Attention: Xxxxxx Xxxxx, Esq.
If to the Exchange Agent, to:
State Street Bank and Trust Company
Corporate Trust Administration, CT/OP/0238
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx XxXxxxxx
Vice President
30. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, paragraphs 17, 19, 21 and 23 shall survive the termination of
this agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property then held
by you as Exchange Agent under this Agreement.
31. 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.
INTERAMERICAS COMMUNICATIONS CORPORATION
By:
-----------------------------------
Name:
Title:
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Accepted as of the date
First above written:
STATE STREET BANK AND TRUST
COMPANY, as Exchange Agent
By:
----------------------------------------
Name:
Title:
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SCHEDULE I
FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
I. ACCEPTANCE FEE Waived
Our Acceptance Fee includes review of all relevant
documentation, closing of transaction, setting up records
and opening accounts.
II. ADMINISTRATIVE FEE
Our administrative fee covers all duties of the Agent
including distributing exchange offer documents to DTC,
receipt and examination of required exchange offer
documentation, reporting to company, calculation of and
delivery to participants and DTC. Fees shall be billed
upon closing.
III. OUT OF POCKET EXPENSES As incurred
All out-of-pocket expenses including but not limited to
postage, express mail, telecopier, long distance telephone,
wire transfer charges, courier expenses, or other expense
incurred by the Bank during its acceptance and
administration shall be billed at cost as incurred.
IV. EXTRAORDINARY SERVICES
Charges for the performance of any service not of a routine
administrative nature or not contemplated at closing and
specifically covered elsewhere in this schedule of fees will
be determined by appraisal in amounts commensurate with the
service rendered.
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