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EXHIBIT 10.1
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EXHIBIT 10.1
EXCHANGE AGENT AGREEMENT
This EXCHANGE AGENT AGREEMENT (this "Agreement") dated as of December
___, 1996 between IMPSAT Corporation, a Delaware Corporation ("IMPSAT"), and
The Bank of New York, a banking corporation formed under the laws of the State
of [New York, United States] (the "Exchange Agent").
W I T N E S S E T H:
WHEREAS, IMPSAT is offering to exchange (the "Exchange Offer") all of
its outstanding 12 1/8% Senior Guaranteed Notes due 2003 (the "Old Notes"), of
which an aggregate of $125,000,000 in principal amount are outstanding as of
the date hereof, for an equal principal amount of newly issued 12 1/8% Senior
Guaranteed Notes due 2003 (the "New Notes"), on the terms and in the manner set
forth in the Prospectus, dated December ___, 1996 (the "Exchange Offer
Prospectus"); and
WHEREAS, IMPSAT wishes to appoint the Exchange Agent as its agent for
the purpose of administering the Exchange Offer and the Exchange Agent wishes
to accept such appointment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties agree as follows:
1. Appointment of Exchange Agent; Performance of Duties. IMPSAT hereby
appoints the Exchange Agent as its agent for the exchange of its Old Notes for
its New Notes, and the Exchange Agent accepts such appointment subject to the
terms and conditions contained in this Agreement.
2. Documents. IMPSAT shall provide the Exchange Agent with copies of a
letter of transmittal substantially in the form of Exhibit A attached hereto
(the "Letter of Transmittal"). The Exchange Agent shall request from The
Depository Trust Company ("DTC") no later than the effective date of the
Exchange Offer a Special Security Position Listing of all participants eligible
to participate in the Exchange Offer (the "Participants") and the amount of Old
Notes owned of record by each such Participant; provided, however, that
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the Exchange Agent shall not be responsible for any changes in the Participants
or of the beneficial ownership of the Old Notes during the Exchange Offer. The
Exchange Agent shall make copies of the Letter of Transmittal available to
Holders (as such term is defined in the Letter of Transmittal) and the
Participants upon requests directed to The Bank of New York, Corporate Trust
Administration, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 by
registered or certified mail or by overnight courier.
3. Exchange Agent Responsibilities. The Exchange Agent shall examine
the Letters of Transmittal (or a facsimile thereof) and other documents
received by it or ascertain that (a) each Letter of Transmittal is completed
and duly executed in accordance with the instructions therefor and (b) any
other document required by the instructions accompanying the Letters of
Transmittal is completed and duly executed in accordance with such
instructions. Except as otherwise provided in this Paragraph 3, Old Notes shall
not be deemed to be properly tendered unless all of the foregoing requirements
are met prior to the Expiration Date (as defined in the Exchange Offer
Prospectus). The Exchange Agent shall take all steps as it shall deem
reasonable and appropriate to cause the person tendering Old Notes pursuant to
the Exchange Offer to correct any defect that exists in any Letter of
Transmittal or accompanying document. In the event that the Exchange Agent is
unable to cause the correction of any such defect, the Exchange Agent shall
promptly send to IMPSAT any Letter of Transmittal or other document or copies
thereof containing any defect therein, which in its judgment would prevent
acceptance thereof, together with a request for instructions as to actions to
be taken with respect thereto in accordance with Paragraph 8(f) of this
Agreement. All questions with respect to the duties of the Exchange Agent under
this Paragraph 3 will be determined by IMPSAT, which determination shall be
final and binding for the purposes of this Agreement. IMPSAT reserves the
right, if it so elects in its discretion, to waive the failure of any delivery
of Old Notes, Letter of Transmittal or other document pursuant to the Exchange
Offer to comply with any requirement of this Paragraph 3 of the Letter of
Transmittal. IMPSAT reserves the right to terminate or, prior to the Expiration
Date, amend the Exchange Offer as provided in the Exchange Offer Prospectus. If
notified by IMPSAT of termination of the Exchange Offer, the Exchange Agent
shall promptly return all tendered Old Notes to the tendering Holders. If
notified by IMPSAT of an
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amendment of the Exchange Offer, the Exchange Agent shall follow the reasonable
instruction of IMPSAT contained in such notice to the extent consistent with
this Agreement. Each day upon which the Exchange Agent receives one or more
Letters of Transmittal, the Exchange Agent shall provide IMPSAT with a written
account of the following information: (1) the number of properly tendered Old
Notes submitted that day; (2) the cumulative number of properly tendered Old
Notes submitted and not properly withdrawn through such day; (3) the number of
Old Notes covered by defective tenders submitted that day; (4) the number of
Old Notes which are submitted that day pursuant to the guaranteed delivery
procedures contained in the Letter of Transmittal; and (5) the cumulative
number of Old Notes covered by uncorrected defective tenders as of such date.
4. Acceptances and Exchange.
(a) At any time after the Expiration Date (as defined in the
Exchange Offer Prospectus), upon receiving a notice from IMPSAT directing the
exchange of properly tendered Old Notes, the Exchange Agent shall, as agent of
IMPSAT and subject to all the conditions of the Exchange Offer, accept for
exchange all Old Notes properly tendered in accordance with this Agreement
which are not properly withdrawn prior to the Expiration Date (as defined in
the Exchange Offer Prospectus). Thereafter, unless notified otherwise by
IMPSAT, the Exchange Agent shall continue to accept for exchange all Old Notes
which are properly delivered to the Exchange Agent pursuant to Notices of
Guaranteed Delivery (as defined in the Exchange Offer Prospectus) by shall not
accept any other Old Notes for exchange.
(b) Following such acceptance of Old Notes, the Exchange Agent shall
promptly present all such Old Notes to the registrar with instructions to cause
such Old Notes to be marked as "cancelled" in the name of IMPSAT in the
appropriate registers. The Exchange Agent promptly shall notify The Bank of New
York, as Registrar and Transfer Agent for the New Notes (in such capacity, the
"Registrar") of (A) the names of the Holders on whose behalf Old Notes have
been so presented and the number of Old Notes so presented on behalf of each
and (B) the instructions for delivery of New Notes provided in the Letters of
Transmittal submitted by each such Holder. The Exchange Agent shall from time
to time request the Registrar to issue such New Notes as are required for
delivery hereunder.
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5. Assignees; Signatures. If a New Note or beneficial ownership
thereof is to be delivered to, or reflected on the records of the Depository
Trust Company ("DTC") as belonging to, an assignee of the Holder or beneficial
owner of the surrendered Old Notes, the assignee of the Holder or the
beneficial owner shall pay to the Exchange Agent the amount of any transfer
taxes applicable to such transfer unless satisfactory evidence of the payment
of such tax, or exception therefrom, is submitted.
The signature (or signatures, in the case of any Old Notes owned by two
or more joint holders) on a Letter of Transmittal must correspond exactly with
the name(s) appearing on the records of the Registrar.
6. Records. The Exchange Agent shall maintain, on a continuing basis,
in addition to the information required by Paragraphs 3 and 4 hereof, a record
showing the following: (i) the names and addresses of all Holders who have
tendered Old Notes for exchange and of all Holders to whom New Notes will be or
have been issued or to whose DTC account New Notes will be or have been
credited, (ii) the face amount of Old Notes held by each such Holder, and (iii)
the face amount of Old Notes tendered by and New Notes to be issued to each
such Holder. Upon the request of IMPSAT, the Exchange Agent shall provide
IMPSAT with a report setting forth the information maintained pursuant to this
Paragraph 6, together with such other information as may from time to time by
reasonably requested.
7. Fees. IMPSAT shall pay all reasonable out-of-pocket expenses of the
Exchange Agent for postage, stationery, printing, telephone, facsimile, telex
and other similar items (other than those specifically described below) and the
reasonable fees and disbursements of legal counsel to the Exchange Agent
incurred in rendering services hereunder at cost, pursuant to monthly invoices
from the Exchange Agent. In no case, however, unless agreed to in advance by
IMPSAT, shall the payment of IMPSAT of the fees and disbursements of legal
counsel to the Exchange Agent exceed the sum of _________________. In addition,
IMPSAT shall pay such fees as IMPSAT and the Exchange Agent may agree in
writing from time to time.
8. Limitation of Duties. As Exchange Agent hereunder the Exchange
Agent:
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(a) shall have no duties or obligations other than those specifically
set forth herein;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any
Old Notes or New Notes or any Letter of Transmittal or other document deposited
with or delivered to the Exchange Agent hereunder or any signature or
endorsement in connection therewith and will not be required to and will not
make any representation as to their validity, value or genuineness;
(c) shall not be obligated to take any legal action hereunder which
might in the judgment of the Exchange Agent involve any expense or liability
unless the Exchange Agent shall have been furnished with indemnity acceptable
to it;
(d) may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, letter, telegram or other document or security
delivered to the Exchange Agent without gross negligence, bad faith or without
misconduct to be genuine and to have been signed by the proper party or parties;
(e) shall not be liable for any action taken or omitted by the
Exchange Agent, or any action suffered by it to be taken or omitted, without
gross negligence, bad faith or willful misconduct on its part, by reason of or
as a result of the administration of its duties hereunder, and it may rely on
and shall be protected in acting upon the written instructions of any person
reasonably believed by it to be a proper officer or representative of IMPSAT
relating to the Exchange Agent's duties hereunder;
(f) may apply to IMPSAT for written instructions with respect to any
matter arising in connection with the Exchange Agent's duties and obligations
arising under this Agreement, and the application by the Exchange Agent for
written instructions from IMPSAT may, at the option of the Exchange Agent, set
forth in writing any action proposed to be taken or omitted by the Exchange
Agent with respect to its duties or obligations under this Agreement and the
date or dates on or after which such action shall be taken, and the Exchange
Agent shall not be liable for any action taken or omitted in accordance with a
proposal included in any such application on or
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after the date specified therein (which date shall not, without IMPSAT's
consent, be less than five business days after IMPSAT is deemed to have
received such application) unless, prior to taking or omitting any such action,
the Exchange Agent has received written instructions from IMPSAT in response to
such application specifying the action to be taken or omitted. The right
conferred by this Paragraph 8(f) shall be restricted by the requirement of
Paragraph 3 hereof that, with respect to defects in any Letter of Transmittal
or accompanying document, the Exchange Agent shall take such steps as it shall
deem reasonable and appropriate to correct the same before applying to IMPSAT
under this Paragraph 8(f) for instructions; and
(g) may consult counsel satisfactory to the Exchange Agent and IMPSAT,
and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion of such counsel.
9. Court Orders. If any property subject hereto is at any time
attached, garnished or levied upon under any court order or in case the
payment, assignment, transfer, conveyance or delivery of any such property
shall be stayed or enjoined by any court order, or in case any order, judgment
or decree shall be made or entered by any court affecting such property or any
part thereof, then and in any such event the Exchange Agent is authorized, in
its sole discretion, to rely upon and comply with any such order, writ,
judgment or decree which it is advised by legal counsel of its own choosing is
binding upon them, and, if it complies with any such order, writ, judgment or
decree, it shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance even through such
order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
10. Indemnification. IMPSAT agrees to indemnify the Exchange Agent and
hold it harmless from and against any loss, liability or expense (including
reasonable counsel fees and expenses) incurred by the Exchange Agent without
gross negligence, bad faith or willful misconduct on its part arising out of or
in connection with the admiration of its duties and any action taken or omitted
to be taken hereunder and otherwise in connection with the Exchange Offer and
against any stock transfer or other tax. The Exchange Agent agrees to
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indemnify IMPSAT and hold harmless from and against any loss, liability or
expense (including reasonable counsel fees and expenses) incurred by IMPSAT as
a result of gross negligence, bad faith or willful misconduct on the part of
the Exchange Agent arising out of or in connection with the administration of
its duties and any action taken or omitted to be taken hereunder and otherwise
in connection with the Exchange Offer.
11. Amendments. This Agreement may be amended only by an instrument
in writing executed by the parties hereto or their successors and assigns.
12. Reports; Notices. All reports, notices, applications (including
applications for instructions in accordance with Paragraph 8(f) hereof) and
other communications required or permitted hereunder shall be in writing and
shall be deemed given when addressed and delivered by facsimile transmission
(confirmed by telephone call), which delivery may be followed by delivery by
hand or overnight delivery service, to the address for the party set forth
below or at such other address as a party may furnish by like notice to the
other parties hereto:
If to IMPSAT:
IMPSAT Corporation
Xxxxxxx Xxxxxx 000
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xx. Xxxxxxxxx Xxxxx, Vice President,
Finance
Facsimile Number: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Facsimile Number: (000) 000-0000
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Facsimile Number: (000) 000-0000
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Delivery of a notice sent by facsimile transmission shall be deemed to
be effective 24 hours after delivery has been confirmed by telephone.
13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but both of which together
shall constitute but one agreement.
14. Termination. This Agreement shall terminate on [December 31,
1996], or on such earlier date as may be agreed in a signed writing between
IMPSAT and the Exchange Agent. Upon termination, copies of all information
maintained by the Exchange Agent for IMPSAT under this Agreement shall be
delivered to IMPSAT as soon as practicable following IMPSAT's request for such
information. The right of the Exchange Agent to be reimbursed for out-of-pocket
expenses as provided in Paragraph 7 and the indemnification provisions of
Paragraph 10 hereof shall survive termination of this Agreement.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, IMPSAT Corporation and The Bank of New York have
duly executed this Agreement as of the date first set forth above.
IMPSAT CORPORATION
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
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