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EXCHANGE AGENT AGREEMENT
TeleHub Communications Corporation (the "Company") proposes to offer to
exchange (the "Exchange Offer") its outstanding 13.875% Senior Discount Notes
due 2005, Series A (the "Old Notes") for a similar principal amount of its
13.875% Senior Discount Notes due 2005, Series B (the "New Notes"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus, dated , 1998 (the "Prospectus"), to be
distributed to all record holders of the Old Notes. The Old Notes and the New
Notes are, collectively, the "Notes". The Company's subsidiaries, TeleHub
Technologies Corporation, TeleHub Leasing Corporation and TeleHub Network
Services Corporation (collectively, "Subsidiaries") will guarantee the Notes.
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 to State Street Bank and Trust
Company.
The Company expects to commence the Exchange Offer around .
Holders of the Old Notes will use the Letter of Transmittal accompanying the
Prospectus to accept the Exchange Offer. The Letter of Transmittal contains
instructions for delivery of certificates for Old Notes tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). As described in the Prospectus, the
Company expressly reserves the right to extend the Exchange Offer from time to
time and may extend the Exchange Offer. The Company will inform holders about
extension of the Expiration Date by oral notice (confirmed in writing) or
written notice issued by means of a press release or other public announcement
no later than 9 a.m., New York City time, on the business day following the
previously designated Expiration Date.
When carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform the duties and only such duties specifically set forth
in the Prospectus section captioned "The Exchange Offer" or specifically set
forth herein. However, this section does not, in any way, discharge your general
duty to act in good faith.
2. Within two business days after the Prospectus date, you will establish
an account for the Old Notes at The Depository Trust Company (the "Book-Entry
Transfer Facility") for purposes of the Exchange Offer. Any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old Notes by causing the Book-Entry Transfer
Facility to transfer such Old Notes into your account in accordance with the
Book-Entry Transfer Facility's transfer procedures. During the Exchange Offer,
you will maintain an address in the Borough of Manhattan, the City of New York,
at which tenders of Old Notes may be made.
3. You will examine each Letter of Transmittal and Old Note certificate (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility) and any other documents delivered or mailed to you by or for holders
of the Old Notes to ascertain whether:
3.1. the Letters of Transmittal and such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; and
3.2. the Old Notes have otherwise been properly tendered as set forth
in Section 5.
If you ascertain that a Letter of Transmittal or any other document has been
improperly completed or executed, that any Old Note certificate is not in proper
form for transfer or that some other irregularity in connection with any tender
of Old Notes pursuant to the Exchange Offer exists, then you will inform the
presenters of the need to fulfill all requirements and to take any other action
as may be necessary or advisable to cause such irregularity to be corrected.
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4. With approval from the Company's Chief Financial Officer or any other
person he designates in writing (collectively, "Company Agent"), you are
authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
5. Holders must tenders Old Notes only as set forth in the Letter of
Transmittal and in the Prospectus section captioned "The Exchange Offer --
Procedures for Tendering Old Notes". Old Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein. Notwithstanding the provisions of this Section and Section 7 below, if
the Company Agent approves any Old Notes as having been properly tendered, then
you shall accept such Old Notes as properly tendered.
6. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You will accept tenders:
7.1. in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
7.2. 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
7.3. from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any untendered Old 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 promptly after the Expiration Date, of its
acceptance of all properly tendered Old Notes. On behalf of the Company, you
will then exchange such properly tendered Old Notes for New Notes and cause such
exchanged Old Notes to be cancelled. You will deliver New Notes at the rate of
$1,000 principal amount of New Notes for each $1,000 principal amount of
properly tendered Old Notes, with delivery to occur promptly after Company's
notice that it accepted such Old Notes; provided, however, that in all cases,
Old Notes tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Notes (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 and any other documents required
by the Letter of Transmittal or the Prospectus. You shall issue New Notes only
in denominations of $1,000 or integral multiples 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, Old Notes tendered under the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any tendered Old Notes if
any condition set forth in the Exchange Offer is not satisfied. The Company will
notify you of any decision not to exchange any tendered Old Notes.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus section captioned
"The Exchange Offer -- Certain Conditions of the Exchange Offer" or otherwise,
then as soon as practicable after the expiration or termination of the Exchange
Offer, you shall return the those certificates for unaccepted Old Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
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12. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes shall be forwarded by (a) first-class certified mail, return receipt
requested 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
of (b) by registered mail insured 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 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:
14.1. shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing by you and the Company;
14.2. will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old Notes represented thereby 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; provided, however, that in no way will your general duty to
act in good faith be discharged by the foregoing;
14.3. 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 indemnity reasonably satisfactory to
you;
14.4. 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;
14.5. 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;
14.6. may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Company;
14.7. 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
14.8. shall not advise any person tendering Old Notes 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 Notes.
15. As the Company or its legal counsel may request, you will take such
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 approved 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 cable, telex, facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Company and such other person
or persons as it 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 number of Old Notes 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. 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 reasonably requests. Such
cooperation
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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 Old Notes tendered, the aggregate principal amount of Old
Notes accepted and deliver that list to the Company.
17. You shall stamp Letters of Transmittal and Notices of Guaranteed
Delivery with the date and the time of receipt thereof and shall preserve such
documents 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. 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 attached Schedule I.
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 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 you reasonably believed to be valid,
genuine and sufficient and in accepting any tender or effecting any transfer of
Old Notes you reasonably believed in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Old Notes; 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 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 and until you notify the Company, by letter or cable or by
telex confirmed by letter, of the written assertion of a claim against you or of
any other action commenced against you, promptly after you receive any such
written assertion or 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 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 you thereafter retain unless you reasonably
determine that your interests are adverse to the interests of the Company, in
which case you shall be entitled to retain counsel and the Company shall be
liable for the fees and expenses of such counsel.
22. You shall arrange to comply with all requirements under the tax laws of
the United States which apply to you in performing your duties hereunder,
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 to deduct 31% on payments to 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. At the direction of the Company, 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 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 Old Notes; provided, however, that
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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 Illinois
without regard to the principles of the conflicts of laws thereof, 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.
25. This Agreement may be executed in two or more counterparts, which may
be evidenced by facsimile signature, each of which shall be deemed to be an
original and all of which taken together shall constitute a single agreement.
26. If 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.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged.
28. All notices, approvals, authorizations and instructions from the
Company given orally must be confirmed in writing.
29. 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:
To the Company and Subsidiaries: with a copy to:
Xxxxxxx X. Xxxxxx, Chief Financial
Officer Xxxxxxx X. Xxxxxx, Esq.
TeleHub Communications Corporation Haligman Xxxxxxx Xxxxx & Xxxxxxx, P.C.
0000 Xxx-Xxxxx Xxxxxxx, Xxxxx 000 000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
(800) TELEHUB; (000) 000-0000 (000) 000-0000; (000) 000-0000 (Fax)
To Exchange Agent: with a copy to:
Mr. Xxxxx Xxxxxxx, Assistant Secretary Xxxxxx Xxxxxxxx, Esq.
State Street Bank & Trust Company Peabody & Xxxxxx LLP
Two International Place -- 4th Floor 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 Boston, Massachusetts
(000) 000-0000; (000) 000-0000 (Fax) (000) 000-0000; (000) 000-0000 (Fax)
30. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraph 21 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.
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31. This Agreement shall be binding and effective on the date set forth
besides your signature.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
TELEHUB COMMUNICATIONS CORPORATION,
a Nevada corporation
By:
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Xxxxxxx X. Xxxxxx, Chief Financial Officer
TELEHUB TECHNOLOGIES CORPORATION,
a Nevada corporation
By:
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Xxxxxxx X. Xxxxxx, Chief Financial Officer
TELEHUB LEASING CORPORATION,
a Nevada corporation
By:
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Xxxxxxx X. Xxxxxx, Chief Financial Officer
TELEHUB NETWORK SERVICES CORPORATION,
an Illinois corporation
By:
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Xxxxxxx X. Xxxxxx, Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY
as Exchange Agent
By:
--------------------------------------------------- Date: ____________ , 1998
Name:
Title:
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