EXCHANGE AGENT AGREEMENT
Exhibit 99.6
September __, 0000
XXXXXXXX XXXXX XXXXXXXXX
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Americas
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Americas
Ladies and Gentlemen:
TAM Capital Inc. a Cayman Island corporation (the “Company”) proposes to make an offer (the
“Exchange Offer”) to exchange up to $300,000,000 aggregate principal amount of its registered
7.375% Senior Guaranteed Notes due 2017 (the “New Notes”), for a like principal amount of its
outstanding unregistered 7.375% Senior Guaranteed Notes due 2017 (the “Old Notes”). The Old Notes
were issued and the New Notes will be issued under an indenture dated as of April 25, 2007, among
the Company, XXX X.X. and XXX Linhas Aereas S.A., each as a guarantor (each a “Guarantor” and
collectively, the “Guarantors”) and The Bank of New York, as Trustee, Registrar, Transfer Agent and
Principal Paying Agent. The terms and conditions of the Exchange Offer as currently contemplated
are set forth in (i) a prospectus dated September ___, 2007 (the “Prospectus”), forming a part of
the registration statement of the Company on Form F-4 (File No. [ ]), as amended,
(the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”), and
(ii) the accompanying Letter of Transmittal, dated September ___, 2007 (the “Letter of
Transmittal”), both of which are proposed to be distributed to all record holders of the Old Notes.
The Old Notes and the New Notes are collectively referred to herein as the “Notes.” Capitalized
terms used herein and not defined shall have the respective meanings ascribed to them in the
Prospectus.
The Company hereby appoints The Bank of New York 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.
The Exchange Offer is expected to be commenced by the Company on or about September ___, 2007.
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 Old Notes to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Old Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on October ___, 2007 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.
The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to
accept for exchange any Old Notes not theretofore accepted for exchange, upon the occurrence of any
of the conditions of the Exchange Offer specified in the Prospectus under the caption “This
Exchange Offer - Conditions to this Exchange Offer.” The Company will give oral (promptly
confirmed in writing) or written notice of any amendment, termination or non-acceptance 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 “This 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 Old Notes 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 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 procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Old Notes (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:
(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 Notes 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 Old Notes 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 any Director 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 Old Notes pursuant to
the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of Transmittal and in the
section of the Prospectus captioned “This Exchange Offer – Procedures for Tendering the Existing
Exchange Notes,” and 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 5, Old Notes which the President 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 Old Notes received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes 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 Notes, probided that
customary transfer requirements, including payment of 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 registrar 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 (such notice, if given orally, to be promptly confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes properly tendered and you, on
behalf of the Company, will exchange such Old Notes for New Notes and cause such Old Notes to be
cancelled. Delivery of New Notes will be made on behalf of the Company by you at the rate of
$1,000 principal
amount of New 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 promptly confirmed in writing)
of acceptance of said Old Notes by the Company; 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
manually signed facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue New Notes only in denominations of $100,000 and integral multiples of
$1,000 in excess 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 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 Old Notes 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 Notes 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 Old Notes tendered because of an invalid tender, the occurrence of certain other events set
forth in the Prospectus under the caption “This Exchange Offer — Conditions to this Exchange Offer”
or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange
Offer return 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.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for New Notes 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 persons 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 your own
gross negligence, willful misconduct or bad faith, and in no event shall you be liable to a
securityholder, the Company or any third party for special, indirect or consequential damages, or
lost profits, arising in connection with this Agreement, even if you have been advised of the
possibility of such damages 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 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;
(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 reasonably
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 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 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; and
(j) shall not be responsible for delays or failures in performance resulting from acts beyond
your control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication
line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters.
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: Luiz Xxxxxxx Xxxxxx xx Xxxxxx, General Counsel.
16. You shall advise by facsimile transmission the General Counsel of the Company (at the
facsimile number x00 00 0000-0000), 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 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 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 Old Notes tendered,
the aggregate principal amount of Old Notes 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 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 shall be agreed in writing between the Company and you. 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, fees 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, arising out of or in connection with your
appointment as Exchange Agent and the performance of your duties hereunder, including, without
limitation, 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 Old Notes 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 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 gross negligence, willful misconduct
or bad faith.
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 Old Notes, the
Company’s check in the amount of all transfer taxes so payable; provided, however, that 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.
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:
TAM Capital Inc.
x/x XXX X.X.
Xx. Xxxxxxxx, 000
Lote 4, 1° andar
04072-000 São Paulo, SP Brazil
x/x XXX X.X.
Xx. Xxxxxxxx, 000
Lote 4, 1° andar
04072-000 São Paulo, SP Brazil
Facsimile: x00 00 0000 0000
Attention: Luiz Xxxxxxx Xxxxxx xx Xxxxxx, General Counsel
Attention: Luiz Xxxxxxx Xxxxxx xx Xxxxxx, General Counsel
If to the Exchange Agent:
Facsimile: (000) 000-0000
Attention: Global Finance Americas
Attention: Global Finance Americas
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 Notes, funds or property then held by you as Exchange Agent
under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| TAM CAPITAL, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Accepted as of the date
first above written:
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: |
||||
| Name: | ||||
| Title: |
