EXCHANGE AGENT AGREEMENT
Exhibit 99.5
, 20___
The Bank of New York Mellon Trust Company, N.A.
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Terremark Worldwide, Inc., a Delaware corporation (the “Company”), proposes to make an offer
(the “Exchange Offer”) to exchange all of its outstanding 12.0% Senior Secured Notes due 2017 (the
“Unregistered Securities”) for its 12.0% Senior Secured Notes due 2017 (the “Registered
Securities”). The terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated (the “Prospectus”), proposed to be distributed to all
record holders of the Unregistered Securities. The Unregistered Securities and the Registered
Securities are collectively referred to herein as the “Securities”.
The Company hereby appoints The Bank of New York Mellon Trust Company, N.A. to act as exchange
agent (the “Exchange Agent”) in connection with the Exchange Offer. References hereinafter to
“you” shall refer to The Bank of New York Mellon Trust Company, N.A.
The Exchange Offer is expected to be commenced by the Company on or about . The
Letter of Transmittal accompanying the Prospectus (or in the case of book-entry securities, the
Automated Tender Offer Program (“ATOP”) of the Book-Entry Transfer Facility (as defined below)) is
to be used by the holders of the Unregistered Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Unregistered Securities tendered in
connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on or on such
subsequent 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 (promptly 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.
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The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to
accept for exchange any Unregistered Securities not theretofore accepted for exchange, upon the
occurrence of any of the conditions of the Exchange Offer specified in the Prospectus under the
caption “Exchange Offer—Conditions to the Exchange Offer.” The Company will give oral (promptly
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 “Exchange Offer” or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing.
2. You will establish a book-entry account with respect to the Unregistered Securities 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
Unregistered Securities by causing the Book-Entry Transfer Facility to transfer such Unregistered
Securities into your account in accordance with the Book-Entry Transfer Facility’s procedure for
such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Unregistered
Securities (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 Unregistered
Securities 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 Unregistered Securities have 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 Unregistered Securities 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 reasonably necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, Chief Financial Officer, Chief Legal Officer or any
Vice President of the Company (such approval, if given orally, to be promptly confirmed in writing)
or any other party designated in writing, by such an officer, you are authorized to waive any
irregularities in connection with any tender of Unregistered Securities pursuant to the Exchange
Offer.
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5. Tenders of Unregistered Securities may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned “Exchange Offer—Procedures for
Tendering”, and Unregistered Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Unregistered Securities which the President,
Chief Financial Officer, Chief Legal Officer or any Vice President of the Company shall approve as
having been properly tendered shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Unregistered Securities received
subsequent to the Expiration Date and accept its instructions with respect to disposition of such
Unregistered Securities.
7. You shall accept tenders:
(a) in cases where the Unregistered Securities 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 Unregistered Securities, provided that
customary transfer requirements, including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Unregistered Securities where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Unregistered Securities to the
registrar for split-up and return any untendered Unregistered Securities 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 promptly confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Unregistered Securities properly tendered,
and you, on behalf of the Company, will exchange such Unregistered Securities for Registered
Securities and cause such Unregistered Securities to be cancelled. Delivery of Registered
Securities will be made on behalf of the Company by you at the rate of $1,000 principal amount of
Registered Securities for each $1,000 principal amount of Unregistered Securities tendered promptly
after notice (such notice if given orally, to be promptly confirmed in writing) of
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acceptance of said Unregistered Securities by the Company; provided, however, that in all
cases, Unregistered Securities tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Unregistered Securities (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 manually signed facsimile thereof) with any required
signature guarantees and any other required documents. You shall issue Registered Securities 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, Unregistered
Securities tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
10. The Company shall not be required to exchange any Unregistered Securities 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 Unregistered Securities tendered shall be given (if given orally, to be
promptly 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 Unregistered Securities tendered because of an invalid tender, the occurrence of certain
other events set forth in the Prospectus under the caption “Exchange Offer—Conditions to the
Exchange Offer” or otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Unregistered Securities (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.
12. All certificates for reissued Unregistered Securities, unaccepted Unregistered Securities
and Registered Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer 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.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the same constitutes gross
negligence, willful misconduct or bad faith of you, your agents (if you appointed any such agents
without due care) or your employees, and in no event shall you be liable to a securityholder, the
Company or any third party for special, indirect or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) arising in connection with this
Agreement irrespective of
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whether you have been advised of the likelihood of such loss or damage and regardless of the
form of action;
(b) shall have no duties or obligations other than those specifically set forth herein or as
may be subsequently agreed to in writing between you and the Company;
(c) 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 Unregistered
Securities 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;
(d) 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 indemnity satisfactory
to you;
(e) may conclusively 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 or presented by the
proper person or persons;
(f) may act upon any tender, statement, request, document, agreement, certificate 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 presented by the proper person
or persons;
(g) may conclusively rely on and shall be protected in acting upon written or oral
instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any questions relating to your
duties and responsibilities 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 to be taken by you
hereunder in good faith and in accordance with the advice or opinion of such counsel;
(i) shall in no event be responsible or liable for any failure or delay in the performance of
your obligations under this Agreement arising out of or caused by, directly or indirectly, forces
beyond your reasonable control, including without limitation strikes, work stoppages, accidents
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer (software
or hardware) services; it being understood that you shall use reasonable efforts which are
consistent
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with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances; and
(j) shall not advise any person tendering Unregistered Securities 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 Unregistered Securities.
15. You shall take such action as may from time to time be requested by the Company (and such
other action as you may 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 on your
request. All other requests for information relating to the Exchange Offer shall be directed to
the Company, Attention: Xxxx X. Xxxxx, Chief Legal Officer and Secretary.
16. You shall advise by facsimile transmission Xxxx X. Xxxxx, the Chief Legal Officer and
Secretary of the Company (at the facsimile number (000) 000-0000), and such other person or persons
as the Company may request, daily (and more frequently during the week immediately preceding the
Expiration Date if requested) up to and including the Expiration Date, as to the number of
Unregistered Securities 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 they may
reasonably 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 a final list of all persons whose tenders were
accepted, the aggregate principal amount of Unregistered Securities tendered, the aggregate
principal amount of Unregistered Securities accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to
the date and, after the expiration of the Exchange Offer, 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
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shall dispose of unused Letters of Transmittal and other surplus materials by returning them
to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be entitled to such
compensation as set forth on Schedule I hereto. The provisions of this section shall
survive the termination of this Agreement.
19. You hereby acknowledge receipt 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 your duties, liabilities and
indemnification as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you harmless against any and
all loss, liability, cost or expense, including attorneys’ fees and expenses, incurred without
gross negligence or willful misconduct on your part, or on the part of your agents (so long as you
have appointed such agent with due care) and employees, 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
believed by you to be valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Unregistered Securities 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 Unregistered Securities.
In each case, the Company shall be notified by you, by letter or facsimile transmission, 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 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, and so long as you have not determined, in your
reasonable judgment, that a conflict of interest exists between you and the Company. The
provisions of this section shall survive the termination of this Agreement.
21. 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.
22. 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 Unregistered
Securities, the Company’s check in the amount of all transfer taxes so payable; provided, however,
that you shall reimburse the Company for amounts refunded
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to you in respect of your payment of any such transfer taxes, at such time as such refund is
received by you.
23. 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, 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.
24. This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original and all of which together shall constitute one and the same agreement.
25. 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.
26. 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. This Agreement may not be modified orally.
27. 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:
If to the Company:
Terremark Worldwide, Inc.
One Biscayne Tower
0 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
One Biscayne Tower
0 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Chief Legal Officer
Attention: Xxxx X. Xxxxx, Chief Legal Officer
If to the Exchange Agent:
The Bank of New York Mellon Trust Company, N.A.
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, Xxxxxxx 00000
00000 Xxxxxxxxx Xxxxxxx X.
Xxxxxxxxxxxx, Xxxxxxx 00000
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Facsimile: (000) 000-0000
Attention: Corporate Trust
Administration
Attention: Corporate Trust
Administration
28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing, Sections 18 and 20 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Company any certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
29. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY
WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS
AGREEMENT WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS
WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION WHATSOEVER BETWEEN THEM RELATING
TO THIS AGREEMENT, WHICH ACTION WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE SITTING WITHOUT A JURY.
30. This Agreement shall be binding and effective as of the date hereof.
31. This Agreement may be executed in counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Facsimile and other
electronically scanned and transmitted signatures shall be deemed originals for all purposes of
this Agreement.
[signature page follows]
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| TERREMARK WORLDWIDE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date
first above written:
first above written:
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Exchange Agent |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
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Schedule I
EXCHANGE AGENT COMPENSATION
[TBD]
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