EXCHANGE AGENT AGREEMENT
Exhibit 4.20
October 12, 2007
The Bank of New York
000 Xxxxxxx Xxxxxx — 0 Xxxx — Xxxxxxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx — 0 Xxxx — Xxxxxxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Ladies and Gentlemen:
Broadview Networks Holdings, Inc. a Delaware corporation (the “Company”) proposes to
make an offer (the “Exchange Offer”) to exchange up to $300.0 million aggregate principal
amount of its 11 3/8% Senior Secured Notes due 2012 registered under the Securities Act of 1933
(the “New Securities”) for any and all outstanding 11 3/8% Senior Secured Notes due 2012
(the “Old Securities”). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus (the “Prospectus”), included in the Company’s
Registration Statement on Form S-4 (File No. 333-142946), as amended, that was filed with the
Securities and Exchange Commission and proposed to be distributed to all record holders of the Old
Securities. The Old Securities and the New Securities are collectively referred to herein as the
“Securities”.
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
October 16, 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 Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old Securities tendered in
connection therewith.
The
Exchange Offer shall expire at 5:00 p.m., New York City time, on
November 14, 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 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 “The
Exchange Offer — Conditions to the 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 “The 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 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
Old Securities by causing the Book-Entry Transfer Facility to transfer such Old 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 Old 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 Old 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 Old 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 Old 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 Chief Executive Officer, President or Chief Financial Officer 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 Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the Letter of Transmittal and in
the section of the Prospectus captioned “The Exchange Offer
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— How to Tender”, and Old 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, Old Securities which the Chief Executive
Officer, President or Chief Financial Officer 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 Securities received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old 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 Old Securities, provided that customary
transfer requirements, including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated and as permitted in the
Letter of Transmittal and deliver certificates for Old Securities to the registrar for split-up and
return any untendered Old 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 Old Securities properly tendered and you, on
behalf of the Company, will exchange such Old Securities for New Securities and cause such Old
Securities to be cancelled. Delivery of New Securities will be made on behalf of the Company by
you at the rate of $1,000 principal amount of New Securities for each $1,000 principal amount of
the corresponding series of Old Securities tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Old Securities by the Company;
provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certificates for such Old 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
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and any other required documents. You shall issue New 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, Old 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 Old 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 Old 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 Old Securities tendered because of an invalid tender, the occurrence of certain other events
set forth in the Prospectus under the caption “The 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 Old 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 Old Securities, unaccepted Old Securities or for New
Securities shall be forwarded by (a) first-class certified mail, return receipt requested, under a
blanket surety bond protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates, (b) by registered mail insured separately for the
replacement value of such securities or (c) by appropriate book-entry transfer.
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 loss or
damage of any kind whatsoever (including, but not limited to, loss of profit) arising in connection
with this Agreement irrespective of 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 in the section
of the Prospectus captioned “The Exchange Offer” or
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in the Letter of Transmittal, or as specifically set forth herein or as may be subsequently
agreed to in writing between you and the Company; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing;
(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 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 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; and
(j) shall not advise any person tendering Old 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 Old Securities.
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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: Xxxxx Xxxxxx, with a copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx.
16. You shall advise by facsimile transmission or email to Mr. Xxxxxxx Xxxxxx, Executive Vice
President, General Counsel and Secretary of the Company (facsimile number — (000) 000-0000; email
address — xxxxxxx@xxxxxxxxxxxx.xxx), with a copy to Xxxxxxx Xxxxxxx, Xxxxxxx Xxxx & Xxxxxxxxx LLP
(facsimile number — (000) 000-0000; email address — xxxxxxxx@xxxxxxx.xxx), 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 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 Old Securities tendered, the aggregate principal amount
of Old 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 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.
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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, arising out of or in
connection with the acceptance or administration of your duties or any action taken or omitted to
be taken hereunder or otherwise in connection with the Exchange Offer, including, without
limitation, 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 Old 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 Old
Securities; provided, however, that the Company shall not be liable for
indemnification for any loss, liability, cost or expense, including reasonable attorneys’ fees and
expenses, to the extent arising out of or in connection with your gross negligence, willful
misconduct or bad faith. In each case, the Company shall be notified by you, in accordance with
Section 27 hereof, 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 assertion or been served with a
summons or otherwise notified of any commencement of action. 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 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. 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. The provisions of this Section shall survive the termination of this
Agreement and your resignation or removal for any reason.
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 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 (including by facsimile), 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:
Broadview Networks Holdings, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx X-000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxx X-000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxx
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If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx — 0 Xxxx — Xxxxxxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx — 0 Xxxx — Xxxxxxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
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. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| BROADVIEW NETWORKS HOLDINGS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer, Treasurer and Assistant Secretary |
|||
Accepted as of the date
first above written:
first above written:
THE BANK OF NEW YORK,
as Exchange Agent
as Exchange Agent
By: |
/s/ Xxxxxx X. Xxxxxxx | |||
| Title: Vice President |
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