EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
Dated as of October , 1994
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to the provisions of the offer (the "Exchange Offer") for
all outstanding 14% Senior Notes Due 2007 (the "Old Notes") in exchange for
new 14% Senior Notes Due 2007 (the "New Notes"), pursuant to a Prospectus
dated , 1997 of Teletrac, Inc. (the "Company"), all of the
Company's issued and outstanding Old Notes accepted for tender of exchange
(the "Exchange") prior to 5:00 p.m. New York time on , 1997,
for the Company's New Notes will be exchanged pursuant to the terms and
conditions of the Exchange Offer. The term "Expiration Date" shall have the
meaning set forth in the Prospectus. Upon receipt and execution of this
letter and confirmation of the arrangements herein set forth, Norwest Bank
Minnesota, National Association agrees to act as the Exchange Agent for the
Exchange (the "Exchange Agent"). References hereinafter to "you" shall refer
to Norwest Bank Minnesota, National Association. A copy of the Prospectus is
attached hereto as Exhibit A.
A copy of the form of the letter of transmittal (the "Letter of
Transmittal") to be used by the holders of the Old Notes (the "Holders") to
surrender their Old Notes in order to receive the New Notes pursuant to the
Exchange is attached hereto as Exhibit B.
The Company hereby appoints you to act as Exchange Agent in
connection with the Exchange. In carrying out your duties as Exchange Agent,
you are to act in accordance with the following:
1. You are to examine the Letters of Transmittal and the Old Notes
and other documents delivered or mailed to you, by or for the Holders, 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, if the time so permits,
authorized to endeavor to take such action as you consider best suited to
notify the tenderer of such irregularity and as to the appropriate means of
revolving 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 in connection with
the Exchange, shall be made by representatives of 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.
2. 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 tendered shall be
considered to be properly tendered. Letters of Transmittal shall be recorded
by you as to the date and time of receipt and shall be preserved and retained
by you. New Notes are to be issued in exchange for Old Notes pursuant to the
Exchange only against deposit with you of Old Notes, together with executed
Letters of Transmittal and any other documents required by the Exchange Offer
on each business day from the execution hereof up to the Expiration Date.
3. Upon the oral or written request of the Company (with written
confirmation of such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to Xxxxx X. Queen,
Xxxxxx X. Xxxxxxx or Xxxx X. Xxxx (telephone 000-000-0000) or such other
persons as the Company may reasonably request with a copy to Xxxxx X.
Xxxxxxxxx, Esq. (telephone 000-000-0000), the aggregate number of Old Notes
tendered to you and the number of Old Notes properly tendered on any
particular day. In addition, you will also inform the aforementioned person
or 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.
4. Upon the terms and subject to the conditions of the Exchange
Offer, delivery of New Notes to be issued in exchange for accepted Old Notes
will be made by you promptly after acceptance of tendered Old Notes.
5. If any Holder shall report to you that his/her failure to
surrender Old Notes registered in his/her name is due to the loss,
misplacement or destruction of a certificate or certificates, you shall
request such Holder (i) to furnish to the Exchange Agent an affidavit of loss
and, if required by the Company, a corporate bond or indemnity in an amount
and evidenced by such certificate or certificates of a surety, as may be
satisfactory to the Company, and (ii) to execute and deliver an agreement to
indemnify the Company in such form as is acceptable to the Company. The
obligees to be named in each such indemnity bond shall include the Company
and you. You shall report in writing to the Company the names of all Holders
who claim that their Old Notes have been lost, misplaced or destroyed and the
principal amount of such Old Notes.
6. As soon as practicable after you mail or deliver to a Holder
the New Notes that such Holder may be entitled to receive, you shall forward
the Old Notes submitted to you to Norwest Bank Minnesota, National
Association, as trustee (the "Trustee") under the Indenture dated as of
August 6, 1997 governing the Old Notes and the New Notes, for cancellation
and retirement as are instructed by the Company (or a representative
designated by the Company).
7. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as
Exhibit C. The Company will also reimburse you for your reasonable
out-of-pocket expenses (including reasonable counsel's fees) in connection
with your services promptly after submission to the Company or itemized
statements.
8. As the 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 subsequently be requested in writing of you by the Company and
agreed to by you with respect to the Exchange;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the Company's Holder record information, any Old Notes
deposited with you hereunder or any New Notes, and will not be required
to and will make no representations as to the validity, value or
genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your judgement involve any expenses 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 paragraph 9 hereof 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;
3
(e) may rely on and shall be fully protected and indemnified as
provided in paragraph 9 hereof in acting upon the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of such officer or agent or such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(f) may consult with counsel satisfactory to you, including
counsel for the Company, and the opinion of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in
accordance with the opinion of such counsel; and
(g) shall not at any time advise any person as to the wisdom of
the Exchange or as to the market value or decline or appreciation in
market value of any Old Notes or New Notes.
9. The Company covenants and agrees to indemnify you and hold you
harmless against any loss, claim, damage, liability or expense (including
reasonable legal and other fees and expenses) incurred in connection with
your entering into this Agreement and the performance of your duties
hereunder; PROVIDED, HOWEVER, that you shall not be indemnified against any
such loss, liability or expense arising out of your negligence, misconduct or
bad faith. You agree to notify the Company by letter, or by cable or telex
confirmed by letter, or the written assertion of a claim against you, or of
any action commenced against you in connection with this Agreement, promptly
after you 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, but failure so to notify the Company
shall not relieve the Company of any liability which it may otherwise have,
except to the extent that the Company is materially adversely affected
thereby. You shall engage your own counsel to defend any such claim, who
shall be reasonably satisfactory to the Company, at the expense of the
Company except as provided below. The Company shall be entitled to
participate at its own expense in the defense against any such claim or legal
action and, if the Company so elects at any time after receipt of such
notice, or you so direct in such notice, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event the Company
assumes the defense, you shall be liable for any fees and expenses thereafter
incurred by your counsel. The Company's obligations under this paragraph 9
shall survive the termination of this Agreement and the discharge of your
obligations hereunder and any other termination of this Agreement under any
federal or state bankruptcy law.
4
10. This Agreement and your appointment as the 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. 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 Letter of Transmittal, as they
may from time to time be supplemented or amended, shall be resolved in favor
of the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
11. The relationship between you and the Company described in this
Agreement is that of agent and principal and nothing herein shall be deemed
to constitute you a trustee for or cause you to owe any fiduciary duty to the
Holders or to impose any obligation on you other than as stated herein.
12. Unless otherwise provided herein, all notices, requests and
other communications hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party, addressed to it at its
address and telecopy number set forth below:
If to the Company: Teletrac, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Chief Financial Officer
If to the Exchange Agent: Norwest Bank Minnesota,
National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxx Xxxxxxxxx
5
This Agreement shall be binding and effective as of the date
hereof. Please acknowledge receipt of this letter and confirm the
arrangements herein provided by signing and returning the enclosed copy.
Very truly yours,
TELETRAC, INC.
By:_____________________________
Name:
Title:
Accepted and agreed to as of
the date first above written
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Exchange Agent
By:_____________________________
Name:
Title:
6
