EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
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May , 0000
Xxxxxx Xxxxx Xxxxxxx xx Xxx Xxxx
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Attention: Xxxx Xxxxxxx
Ladies and Gentlemen:
American Radio System Corporation, a Delaware corporation (the "Company"),
intends to make an offer (the "Exchange Offer") to exchange 11 3/8% Cumulative
Exchangeable Preferred Stock, $100 liquidation preference per share, Series B
("New Preferred Stock") for its 11 3/8 Cumulative Exchangeable Preferred Stock,
$100 liquidation preference per share ("Old Preferred Stock"). The terms and
conditions of the Exchange Offer are set forth in a prospectus, dated May __,
1997 (the "Prospectus"), to be distributed to all record holders of the Old
Preferred Stock. Old Preferred Stock and New Preferred Stock are collectively
referred to herein as the "Preferred Stock".
The Company hereby appoints Xxxxxx Trust Company of New York to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Xxxxxx Trust and Savings Bank.
You hereby acknowledge receipt of copies of the Prospectus and a letter of
transmittal, dated the date hereof, with respect to the Exchange Offer (the
"Letter of Transmittal").
The Exchange Offer is expected to be commenced by the Company on or about
the date hereof. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of Old Preferred Stock to accept the Exchange Offer, and
contains instructions with respect to the delivery of certificates for Old
Preferred Stock tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on the
date specified in the Prospectus 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 business day following the
previously scheduled Expiration Date.
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" or herein; provided, however, that in no way will
your general duty to act in good faith be discharged by the foregoing.
2. You are to examine each of the Letters of Transmittal and certificates
for Old Preferred Stock and any other documents delivered, faxed or mailed to
you by or for holders of the Old Preferred Stock to ascertain whether: (i) 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 Old Preferred Stock has 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 Preferred Stock 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.
3. With the approval of the President, any Vice President or the
Treasurer of the Company, or of counsel to the Company, or any other party
designated by any officer named in this Paragraph 3 (such approval, if given
orally, to be confirmed in writing), you are authorized to waive any
irregularities in connection with any tender of Old Preferred Stock pursuant to
the Exchange Offer.
4. Tenders of Old Preferred Stock 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 Old Preferred Stock shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein. Notwithstanding the provisions of this paragraph
4, Old Preferred Stock that the President or any Vice President or the Treasurer
of the Company shall approve as having been properly tendered shall be
considered to be properly tendered.
5. You shall advise the Company with respect to any Old Preferred Stock
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Preferred Stock.
6. You shall accept tenders:
(a) in cases where the Old Preferred Stock 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 Old Preferred
Stock provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Preferred Stock where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Preferred Stock to the transfer agent for split-up and return any untendered Old
Preferred Stock to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable.
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7. The Company will exchange Old Preferred Stock duly tendered for New
Preferred Stock on the terms and subject to the conditions set forth in the
Prospectus and the Letter of Transmittal. Delivery of New Preferred Stock will
be made on behalf of the Company by you at the rate of one share of New
Preferred Stock for each share of Old Preferred Stock tendered as soon as
practicable after the Expiration Date and after notice (such notice if given
orally, to be confirmed in writing) of acceptance of Old Preferred Stock by the
Company; provided, however, that, in all cases, Old Preferred Stock tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Preferred Stock, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents.
8. 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 Preferred Stock tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
9. The Company shall not be required to exchange any Old Preferred Stock
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 Old Preferred Stock
tendered shall be given (and confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Preferred Stock tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer--Expiration Date; Extensions; Amendments" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Preferred
Stock (or advise Depository Trust Company to effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in you possession, to the persons who
deposited them.
11. All certificates for reissued Old Preferred Stock, unaccepted Old
Preferred Stock or New Preferred Stock shall be forwarded by first-class mail
under a blanket surety bond protecting you and the Company from loss or
liability arising out of the non-receipt or non-delivery of such certificates.
12. You are not authorized 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.
13. 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,"
in the "Letter of Transmittal" or herein or as may be subsequently agreed
to in writing by you and the Company;
(b) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or Old Preferred Stock represented thereby
deposited with you pursuant to the Exchange Offer, and will not
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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;
(c) shall not be obligated to take any legal action hereunder that
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 the 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 authorized officer of the Company;
(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 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 Old Preferred Stock 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
Preferred Stock.
14. You shall take such action as may from time to time be requested by
the Company (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 referred to in the Letter of Transmittal) 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.
15. You shall advise by facsimile transmission or telephone (and if such
advice is by telephone promptly thereafter confirm in writing) to the Company
and Xxxxxxxx & Worcester LLP, in the manner provided in paragraph 26 below,
weekly (and daily during the week immediately preceding the Expiration Date and
more frequently if otherwise requested up to and including the Expiration Date,
as to the number of shares of Old Preferred Stock that have been tendered
pursuant to the Exchange offer and the items received by you pursuant to this
Agreement, separately reporting
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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 Xxxxxxxx & Worcester LLP upon oral request made from time to
time prior to the Expiration Date of such other information as it or they
reasonably may request. Such 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 promptly a final list of
all persons whose tenders were accepted, the aggregate number of shares of Old
Preferred Stock tendered, the aggregate number of shares of Old Preferred Stock
accepted and deliver said list to the Company.
16. 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.
17. 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 owned to you hereunder.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to $3,500 plus reasonable out of pocket expenses as agreed upon between
you and the Company.
19. You hereby acknowledge that you have examined each of the Prospectus
and the Letter of Transmittal. 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 covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder, harmless against any loss, liability, cost
or expense, including reasonable attorneys' fees arising out of or 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 reasonable 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 Preferred Stock; provided, however, that
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,
willful misconduct or bad faith. 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 facsimile transmission 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 shall have been served with a summons in connection therewith. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action, and, if the
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Company so elects, the Company shall assume the defense of any suit brought to
enforce any such claim. In the event that the Company shall assume the defense
of any such suit, the Company shall not be liable for the fees and expenses of
any additional counsel thereafter retained by you, so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit.
21. You 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 Old Preferred Stock, 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 by the Company in respect of the exchange of Old
Preferred Stock in accordance with the section of the Prospectus captioned ("The
Exchange Offer--Fees and Expenses"); provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of you payment of any such
transfer taxes, at such time as such refund is received by you.
22. This Agreement and you 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,
without regard to any conflict of laws provisions, 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. This Agreement may not be
modified orally.
23. 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.
24. 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.
25. 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.
26. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Exchange Agent:
Xxxxxx Trust Company of New York
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Attention: Xxxx XxXxxxxxxx
Facsimile: (000) 000-0000
27. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety days following the Expiration Date. Notwithstanding the
foregoing, Paragraph 20 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to the Company any
certificates, funds or property then held by you as Exchange Agent under this
Agreement.
28. 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.
AMERICAN RADIO SYSTEMS CORPORATION
By:___________________________________________
Name:
Title:
Accepted as of the date
first above written.
XXXXXX TRUST COMPANY OF NEW YORK
By:_________________________________
Name:
Title:
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