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Exhibit 25.4
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of July, 1998 between IBJ Xxxxxxxx Bank
& Trust Company, a banking corporation organized under the laws of the State of
New York, as Exchange Agent (the "Agent") Tri-State Outdoor Media Group, Inc. a
corporation organized under the laws of the State of Kansas (the "Company").
The Company proposes to exchange $1,000 principal amount of the Company's
11% Senior Notes due 2008, [Series B] (the "New Notes" or "Exchange Notes") in
exchange (the "Exchange Offer") for an equal aggregate Principal amount of the
Company's outstanding 11% Senior Notes due 2008, [Series A] (the "Existing
Notes") pursuant to the Exchange Agency Agreement dated as of July 1998 and the
accompanying Letter of Transmittal. The Exchange Offer will terminate at 5:00
p.m. New York City Time on _______, unless extended by the Company in its sole
discretion (the "Expiration Date"). The New Notes are to be issued by the
Company pursuant to the terms of an Indenture dated as of May 15, 1998 (the
"Indenture") between the Company, and IBJ Xxxxxxxx Bank & Trust Company, as
trustee (the "Trustee").
Subject to the provisions hereof, the Company hereby appoints and the
Agent hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Existing Notes
(the "Certificates") in accordance with the form of Letter of Transmittal
attached hereto (the "L/T") and with the terms and conditions set forth herein
and under the caption "The Exchange Offer" in the Prospectus.
The Agent has received the following documents in connection with its
appointment:
(1) L/T
(2) a form of Notice of Guaranteed Delivery
(3) the Prospectus
(4)
The Agent is authorized and hereby agrees to act as follows:
(a) to address, and deliver by hand or next day courier, a complete set
of the Exchange offer Documents to each person who, prior to the
Expiration Date, becomes a registered holder of Existing Notes
promptly after such person becomes a registered holder of Existing
Notes,
(b) to receive all tenders of Existing Notes made pursuant to the
Exchange Offer and stamp the L/T with the day, month and approximate
time of receipt;
(c) to examine each L/T and Existing Notes received to determine that
all requirements necessary to constitute a valid tender have been
met. The
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Agent shall be entitled to rely on the electronic messages sent by
the Depository Trust Company ("DTC") regarding ATOP delivery of the
Notes to the Agent s account at DTC from the DTC participants listed
on the DTC position listing provided to the Agent;
(d) to take such actions necessary and appropriate to correct any
irregularity or deficiency associated with any tender not in proper
order;
(e) to follow instructions given by Xxxxxxx X. Xxxxx/Xxxxxxx X.
XxXxxxxx, of the Company, with respect to the waiver of any
irregularities or deficiencies associated with any tender;
(f) to hold all valid tenders subject to further instructions from
Xxxxxxx X. Xxxxx/Xxxxxxx X. XxXxxxxx of the Company;
(g) to render a written report, in the form of Exhibit A attached
hereto, on each business day during the Exchange Offer and promptly
confirm, by telephone, the information contained therein to
at .
(h) to follow and act upon any written amendments, modifications or
supplements to these instructions, any of which may be given to the
Agent by the President, any Vice President or the Secretary of the
Company or such other person or persons as they shall designate in
writing;
(i) to return to the presenters, in accordance with the provisions of
the L/T, any Existing Notes that were not received in proper order
and as to which the irregularities or deficiencies were not cured or
waived;
(j) in the event the Exchange Offer is consummated, to deliver
authenticated Exchange Notes to tendering Noteholders, in accordance
with the instructions of such Noteholder's specified in the
respective L/T's, as soon as practicable after receipt thereof,
(k) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other
requirements are fulfilled in connection with any request for
issuance of the Exchange Notes in a name other than that of the
registered owner of the Existing Notes;
(l) to deliver to, or upon the order of, the Company all Existing Notes
received under the Exchange Offer, together with any related
assignment forms and other documents; and
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(m) subject to the other terms and conditions set forth in this
Agreement to take all other actions reasonable and necessary in the
good faith judgment of the Agent, to effect the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those specifically set
forth herein;
(b) not be required to refer to any documents for the performance of its
obligations hereunder other than this Agreement, the L/T and the
documents required to be submitted with the L/T; other than such
documents, the Agent will not be responsible or liable for any
terms, directions or information in the Prospectus or any other
document or agreement unless the Agent specifically agrees thereto
in writing;
(c) not be required to act on the directions of any person, including
the persons named above, unless the Company provides a corporate
resolution to the Agent or other evidence satisfactory to the Agent
of the authority of such person;
(d) not be required to and shall make no representations and have no
responsibilities as to the validity, accuracy, value or genuineness
of (i) the Exchange Offer, (ii) any Certificates, L/T's or documents
prepared by the Company in connection with the Exchange Offer or
(iii) any signatures or endorsements, other than its own;
(e) not be obligated to take any legal action hereunder that might, in
its judgment, involve any expense or liability, unless it has been
finished with reasonable indemnity by the Company;
(f) be able to rely on and shall be protected in acting on the written
or oral instructions with respect to any matter relating to its
actions as Agent specifically covered by this Agreement, of any
officer of the Company authorized to give instructions under
paragraph (g) or (h) below;
(g) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or any
other document or security delivered to it and believed by it
reasonably and in good faith to be genuine and to have been signed
by the proper party or parties;
(h) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person executing or delivering
or purporting to execute or deliver any document or property under
this Agreement and shall
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have no responsibility with respect to the use or application of any
property delivered by it pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it (including
counsel for the Company or staff counsel of the Agent) 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 by it hereunder in good faith and in accordance
with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not advise, any
person delivering an L/T pursuant to the Exchange Offer as to the
value of the consideration to be received;
(k) not be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own gross negligence,
willful misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or modification
of this Agreement or any of the terms hereof, unless evidenced by a
writing delivered to the Agent signed by the proper authority or
authorities and, if the Agent's duties or rights are affected,
unless the Agent shall give its prior written consent thereto;
(m) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to
enforce any obligation of any person to perform any other act; and
(n) have the right to assume, in the absence of written notice to
the contrary from the proper person or persons, that a fact or
an event by reason of which an action would or might be taken by
the Agent does not exist or has not occurred without
incurring liability for any action taken or omitted, or any
action suffered by the Agent to be taken or omitted, in good faith
or in the exercise of the Agent's best judgment, in reliance upon
such assumption.
The Agent shall be entitled to compensation as set forth in Exhibit B
attached hereto.
The Company covenants and agrees to reimburse the Agent for, indemnify it
against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of counsel and allocated cost of staff
counsel) that may be paid or incurred or suffered by it or to which it may
become subject without gross negligence, wilful misconduct or bad faith on its
part by reason of or as a result of its compliance with the instructions set
forth herein or with any additional or supplemental written or oral instructions
delivered to it pursuant hereto, or which may arise out of or in connection with
the administration and performance of its duties under this
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Agreement. The Company agrees to promptly notify the Agent of any extension of
the Expiration Date.
This Agreement shall be construed and enforced in accordance with the laws
of the State of New York and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of the parties
hereto. The parties agree to submit and to the exclusive jurisdiction of the
federal or state courts located in the State of New York, New York County.
Unless otherwise expressly provided herein, all notices, requests, demands
and other communications hereunder shall be in writing, shall be delivered by
hand, facsimile or by First Class Mail, postage prepaid, shall be deemed given
when received and shall be addressed to the Agent and the Company at the
respective addresses listed below or to such other addresses as they shall
designate from time to time in writing, forwarded in like manner.
if to the Agent, to: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Reorganization Operations Dept.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Finance Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to: Tri-State Outdoor Media Group, Inc.
X.X. Xxx 0000
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: St. Xxxx & Xxxxx, L.L.C.
Xxx Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on behalf by their officers thereunto duly authorized, all as of the
day and year first above written.
IBJ Xxxxxxxx Bank & Trust Company
By:
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Tri-State Outdoor Media Group, Inc.
By:
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Name: Xxxxxxx X. Xxxxx
Title: President
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SAMPLE REPORT
Date:
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Report Number:
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As of Date:
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Ladies & Gentlemen:
A Exchange Agent for the Exchange Offer dated , 1998, we hereby render the
following report.
Principal Amount previously received:
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Principal Amount received today:
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Principal Amount received against Guaranteed Deliveries:
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Principal Amount withdrawn today:
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Total Principal Amount received to date:
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RECAP OF PRINCIPAL AMOUNT REPRESENTED BY GUARANTEES
Guarantees previously outstanding:
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Guarantees received today:
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Guarantees settled today:
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Guarantees withdrawn today:
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Guarantees outstanding:
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TOTAL PRINCIPAL AMOUNT AND GUARANTEES OUTSTANDING-
Very truly yours,
Reorganization Operations Dept.
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EXHIBIT B
COMPENSATION
The Agent for serving as the Exchange Agent pursuant to this Agreement,
shall receive a fee of $2,500, payable upon commencement of the Exchange
Offer, and the Agent's out-of-pocket expenses incurred in connection with
completing its duties pursuant to this Agreement.
