EXHIBIT 99.3
FORM OF EXCHANGE AGENT AGREEMENT
July 25, 2001
Bankers Trust Company
c/o BT Services Tennessee, Inc.
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Reorganization Unit
DEXIA Banque Internationale a Luxembourg S.A.
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Transactional Execution Group
Ladies and Gentlemen:
HQI Transelec Chile S.A. a stock corporation (sociedad anonima) organized
under the laws of the Republic of Chile (the "Company"), is offering to exchange
(the "Exchange Offer") its unregistered 7?% Senior Notes due 2011 (the "Old
Notes") of which $465,000,000 aggregate principal amount is outstanding for an
equal principal amount of its registered 7?% Senior Notes due 2011 (the "New
Notes"; together with the Old Notes, the "Notes"), pursuant to a prospectus (the
"Prospectus") included in the Company's Registration Statement on Form F-4 (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "SEC") and attached hereto as Exhibit A. The Term "Expiration Date" shall
mean 5:00 p.m., New York City time, on August 24, 2001, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, Bankers Trust Company will
act as the Principal Exchange Agent for the Exchange Offer (the "Principal
Exchange Agent") and DEXIA Banque Internationale a Luxembourg will act as
Luxembourg Exchange Agent for the Exchange Offer (the "Luxembourg Exchange
Agent"). Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter to
clients (collectively, the "Tender Documents") to be used by holders of Old
Notes in order to receive New Notes pursuant to the Exchange Offer are attached
hereto as Exhibit B.
The Company hereby appoints Bankers Trust Company to act as Principal
Exchange Agent and DEXIA Banque Internationale a Luxembourg to act as Luxembourg
Exchange Agent (collectively, the "Exchange Agents") in connection with the
Exchange Offer. In carrying out your respective duties as an Exchange Agent, you
are to act in accordance with the following provisions of this Agreement:
1. The Principal Exchange Agent is to mail the Prospectus and the Tender
Documents to all of the holders of the Old Notes and participants on the day
that it is notified by the Company that the Registration Statement has
become effective under the Securities Act of 1933, as amended, or as soon as
practicable thereafter, and to make subsequent mailings thereof after the
date thereof and to any persons who become holders of the Old Notes prior to
the Expiration Date and to any persons as may from time to time be requested
by the Company. All mailings pursuant to this Section 1 shall be by first
class mail, postage prepaid, unless otherwise specified by the Company. The
Principal Exchange Agent shall also accept and comply with telephone
requests for information relating to the Exchange Offer provided that such
information shall relate only to the procedures for tendering Old Notes in
(or withdrawing tenders of Old Notes from) the Exchange Offer. All other
requests for information relating to the Exchange Offer shall be directed to
the Company, Attention: Investor Relations Officer, Santa Xxxx 00, Xxxx 0,
Xxxxxxxx, Xxxxx, (00-0) 000-0000.
2. The Luxembourg Exchange Agent shall act as intermediary between the holders
of the Old Notes and the Principal Exchange Agent and will forward all
documents and requests for information received by the Luxembourg Exchange
Agent in connection with the Exchange Offer to the Principal Exchange Agent.
In
addition, the Luxembourg Exchange Agent will hold the Tender Documents and
respond to requests for the Tender Documents from holders of the Old Notes.
3. The Principal Exchange Agent is to examine Letters of Transmittal and the
Old Notes and other documents delivered or mailed to you, by or for the
holders of the Old Notes, prior to the Expiration Date, to ascertain whether
(i) the Letters of Transmittal are properly executed and completed in
accordance with the instructions set forth therein, (ii) the Old Notes are
in proper form for transfer and (iii) all other documents submitted to you
are in proper form. In each case where a Letter of Transmittal or other
document has been improperly executed or completed or, for any other reason,
is not in proper form, or some other irregularity exists, you are authorized
to endeavor to take such action as you consider appropriate to notify the
tendering holder of Old Notes of such irregularity and as to the appropriate
means of resolving the same. Determination of questions as to the proper
completion or execution of the Letters of Transmittal, or as to the proper
form for transfer of the Old Notes or as to any other irregularity in
connection with the submission of Letters of Transmittal and/or Old Notes
and other documents in connection with the Exchange Offer, shall be made by
the officers of, or counsel for, the Company at their written instructions
or oral direction confirmed by facsimile. Any determination made by the
Company on such questions shall be final and binding.
4. It is understood that the Company reserves the right in its sole discretion
to delay acceptance of the Old Notes, to extend or terminate the Exchange
Offer and not to accept for exchange any outstanding Old Notes not
theretofore accepted for exchange as contemplated by the Prospectus and
Letter of Transmittal. At the written request of the Company or its counsel,
Shearman & Sterling, the Principal Exchange Agent shall notify tendering
holders of Old Notes in the event of any such termination and the Principal
Exchange Agent will return all tendered Old Notes to the persons entitled
thereto, at the request and expense of the Company or its counsel.
5. Tender of the Old Notes may be made only as set forth in the Letter of
Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to
be properly tendered. Letters of Transmittal and Notices of Guaranteed
Delivery shall be recorded by the Principal Exchange Agent as to the date
and time of receipt and shall be preserved and retained by you at the
Company's expense for one year. New Notes are to be issued in exchange for
Old Notes pursuant to the Exchange Offer only (i) against deposit with you
prior to the Expiration Date or, in the case of a tender in accordance with
the guaranteed delivery procedures outlined in Instruction 2 of the Letter
of Transmittal, within three New York Stock Exchange trading days after the
Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and other documents required by the Exchange Offer or (ii) in
the event that the holder of the Old Notes is a participant in the
Depository Trust Company ("DTC") system, by the utilization of DTC's
Automated Tender Offer Program ("ATOP") and any evidence required by the
Exchange Offer.
The Principal Exchange Agent is hereby directed to establish an account with
respect to the Notes at The Depositary Trust Company (the "Book Entry Transfer
Facility") within two days after the date hereof in accordance with SEC
Regulation 240.17 Ad. Any financial institution that is a participant in the
Book Entry Transfer Facility system may, until the Expiration Date, make
book-entry delivery of the Old Notes by causing the Book Entry Facility to
transfer such Old Notes into the Principal Exchange Agent's account in
accordance with the procedure for such transfer established by the Book Entry
Transfer Facility. In every case, however, a Letter of Transmittal (or a
manually executed facsimile thereof), or an Agent's Message, properly completed
and duly executed, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Exchange Offer must
be complied with.
6. Upon oral or written request of the Company (with written confirmation of
any such oral request thereafter), the Principal Exchange Agent will
transmit by telephone, and promptly thereafter confirm in writing to the
Company's Investor Relations Officer, Santa Xxxx 00, Xxxx 0, Xxxxxxxx, Xxxxx
(00-0) 000-0000 or such other persons as the Company may reasonably request,
the aggregate number and principal amount of Old Notes tendered to you and
the number and principal amount of Old Notes properly tendered that day. In
addition, the Principal Exchange Agent will also inform the aforementioned
persons, upon oral request made from time to time (with written confirmation
of such request thereafter) prior to the Expiration Date, of such
information as they or any of them may reasonably request. Such cooperation
shall include, without limitation, the granting by the Principal Exchange
Agent to the Company and such person
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as the Company may request of access to those persons on the Principal
Exchange Agent's 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. The Principal Exchange Agent 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 said list to the Company.
7. The Principal Exchange Agent shall accept partial tenders of Old Notes where
so indicated and as permitted by the terms of the Letter of Transmittal.
Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
the Company will notify the Principal Exchange Agent (such notice, if given
orally, to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and the Principal Exchange
Agent, on behalf of the Company, will cause to be exchanged such Old Notes for
Exchange Notes and cause such Old Notes to be canceled. Delivery of Exchange
Notes will be made on behalf of the Company by the Principal Exchange Agent at
the rate of $1,000 principal amount of Exchange Notes for each $1,000 principal
amount of the corresponding series of Old Notes tendered promptly after notice
(such notice if given orally, to be confirmed in writing) of acceptance of said
Old Notes by the Company.
The Principal Exchange Agent will hold all items which are deposited for
tender with the Principal Exchange Agent after 5:00 p.m. New York City time, on
the Expiration Date pending further instructions from an officer of the Company.
8. If any holder of Old Notes shall report to the Principal Exchange Agent that
his or her failure to surrender Old Notes registered in his or her name is
due to the loss or destruction of a certificate or certificates, the
Principal Exchange Agent shall request such holder (i) to furnish to it an
affidavit of loss and, if required by the Company, a bond of indemnity in an
amount and evidenced by such certificate or certificates of a surety, as may
be satisfactory to the Principal Exchange Agent and the Company, and
(ii) to execute and deliver an agreement to indemnify the Company and the
Principal Exchange Agent in such form as is acceptable to the Principal
Exchange Agent and the Company. The obligees to be named in each such
indemnity bond shall include the Company and the Principal Exchange Agent.
The Principal Exchange Agent shall report to the Company the names of all
holders of Old Notes who claim that their Old Notes have been lost or
destroyed and the principal amount of such Old Notes.
9. As soon as practicable after the Expiration Date, the Principal Exchange
Agent shall mail or deliver via the Book Entry Transfer Facility's
applicable procedures, the New Notes that such holders of Old Notes may be
entitled to receive and the Principal Exchange Agent shall arrange for
cancellation of the Old Notes submitted to the Principal Exchange Agent or
returned by DTC in connection with ATOP. Such Old Notes shall be forwarded
for cancellation and retirement as the Principal Exchange Agent is
instructed by the Company (or a representative designated by the Company) in
writing.
10. For your services as an Exchange Agent hereunder, the Company shall pay you
in accordance with the schedule of fees attached hereto as Exhibit C. The
Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously
paid to you as set forth in Exhibit C) in connection with your services
promptly after submission to the Company of itemized statements. [subject to
HQI Transelec's review and confirmation].
11. You are not authorized to pay any concessions, commissions or solicitation
fees to any broker, dealer, bank or other person or to engage or utilize any
person to solicit tenders.
12. As an Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth herein or in the Exhibits attached hereto or as may be subsequently
requested in writing of you by the Company and agreed to by you in
writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder, any New Notes,
or any Tender Documents or other documents prepared by the Company in
connection with the Exchange Offer;
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(c) shall not be obligated to take any legal action hereunder which might in
your judgment involve any expense or liability unless you shall have been
furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as provided in
Section 12 hereof in acting upon, the written or oral instructions with
respect to any matter relating to your acting as an Exchange Agent
specifically covered by this Agreement or supplementing or qualifying any
such action of any officer or agent of such other person or persons as
may be designated or whom you reasonably believe have been designated by
the Company;
(e) may consult with counsel satisfactory to you, including counsel for the
Company, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by you in good faith and in accordance with such advice of such
counsel;
(f) shall not at any time advise any person as to the wisdom of the Exchange
Offer or as to the market value or decline or appreciation in market
value of any Old Notes or New Notes; and
(g) shall not be liable for any action which you may do or refrain from
doing in connection with this Agreement except for your gross negligence,
willful misconduct or bad faith, provided however that in no way will
your general duty to act in good faith be discharged by the foregoing.
13. The Company covenants and agrees to indemnify and hold harmless each of the
Principal Exchange Agent and the Luxembourg Exchange Agent and each of their
respective officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified Party")
against any loss, liability or reasonable expense of any nature (including
reasonable attorneys' and other fees and expenses) incurred in connection
with the administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; provided, however, such Indemnified Party
shall use its best effort to notify the Company by letter, or by cable,
telex or telecopier confirmed by letter, of the written assertion of a claim
against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the
date such Indemnified Party shall have received any such written assertion
of a claim or shall have been served with a summons, or other legal process,
giving information as to the nature and basis of the claim; provided,
however, that failure to so notify the Company shall not relieve the Company
of any liability which it may otherwise have hereunder except such liability
that is a direct result of such Indemnified Party's failure to so notify the
Company. The Company shall be entitled to participate at its own expense in
the defense of any such claim or legal action and if the Company so elects
or if the Indemnified Party in such notice to the Company so directs, the
Company shall assume the defense of any suit brought to enforce any such
claim. Notwithstanding anything to the contrary set forth herein, you shall
be entitled to retain counsel of your choice in any suit and the Company
shall pay the reasonable fees, expenses and disbursements of such counsel.
You shall not enter into a settlement or other compromise with respect to
any indemnified loss, liability or expense without the prior written consent
of the Company, which shall not be unreasonably withheld or delayed if not
adverse to the Company's interests.
14. This Agreement and your appointment as an Exchange Agent 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. No other person
shall acquire or have any rights under or by virtue of this Agreement.
15. The parties hereto hereby irrevocably submit to the venue and jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan
in New York City in any action or proceeding arising out of or relating to
this Agreement, and the parties hereby irrevocably agree that all claims in
respect of such action or proceeding arising out of or relating to this
Agreement, shall be heard and determined in such a New York State or federal
court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of
any such dispute and agree that delivery or mailing of any process or other
papers in the manner provided herein, or in such other manner as may be
permitted by law, shall be valid and sufficient service thereof.
16. This Agreement may not be modified, amended or supplemented without an
express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to
time be supplemented or amended, shall be resolved in favor of the Tender
Documents, except with respect to the duties, liabilities and
indemnification of you as an Exchange Agent.
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17. This Agreement may be executed in one 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.
18. 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.
19. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Trustee any certificates for Old Notes or New Notes, funds or
property then held by you as an Exchange Agent under this Agreement.
20. All notices and communications hereunder shall be in writing and shall be
deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to Company: HQI Transelec Chile S.A.
Attention: Chief Financial Officer
Xxxxx Xxxx 00
Xxxx 0
Xxxxxxxx, Xxxxx
Telephone: (00-0)000-0000
Telecopier: (00-0) 000-0000
and a copy to: Shearman & Sterling
Attention: Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Principal Exchange Bankers Trust Company
Agent: c/o BT Services Tennessee, Inc.
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attn.: Reorganization Unit
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and a copy to: Leboeuf, Lamb, Xxxxxx & XxxXxx, LLP
Attention: Xxxxx X. Xxxxx, Esq.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Luxembourg Exchange DEXIA Banque Internationale a
Agent: Luxembourg S.A.
Attention: Transactional Execution Group
0 Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
Telephone: (0-00) 0000-0000
Telecopier: (0-00) 0000-0000
or such other address or telecopy number as any of the above may have
furnished to the other parties in writing for such purposes.
21. This Letter Agreement and all of the obligations hereunder shall be assumed
by any and all successors and assigns of the Company.
[SIGNATURE PAGE TO FOLLOW]
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If the foregoing is in accordance with your understanding, would you please
indicate your agreement by signing and returning the enclosed copy of this
Agreement to the Company.
Very truly yours,
HQI TRANSELEC CHILE S.A.
By:
----------------------------------------------
Name: Real Xxxx--Hus
Title: Chief Financial Officer
Agreed to this 25th day of July, 2001
BANKERS TRUST COMPANY,
as Principal Exchange Agent
By: ---------------------------------------
Name:
Title:
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG,
as Luxembourg Exchange Agent
By: ---------------------------------------
Name:
Title:
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EXHIBIT C
SCHEDULE OF FEES
I. PRINCIPAL EXCHANGE AGENT ACCEPTANCE FEES: $5,000
LUXEMBOURG EXCHANGE AGENT ACCEPTANCE FEES: $2,000
Covers review of the Exchange Agent Agreement, the Prospectus, the Letter of
Transmittal and other related documentation; establishment of accounts and
systems link with depositories; operational and administrative charges and time
spent in connection with the review, receipt and processing of Letters of
Transmittal, and Agent's Messages.
NOTE: The fees set forth in this schedule are subject to review of
documentation. The fees are also subject to change should circumstances warrant.
Out-of-pocket expenses and disbursements, including counsel fees, incurred in
the performance of our duties will be added to the billed fees. Fees for any
services not covered in this or related schedules will be based upon our
appraisal of the services rendered.
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