, 1997
EXCHANGE AGENT AGREEMENT
First Union National Bank
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Xxxxxxxx Broadcast Group, Inc., a Maryland corporation, as Depositor ("the
Company") hereby appoints First Union National Bank ("First Union") to act as
exchange agent (the "Exchange Agent") in connection with an exchange offer (the
"Exchange Offer") by the Company to exchange up to $200,000,000 aggregate
Principal Amount of the Company's 9% Senior Subordinated Notes due 2007 (the
"New Notes"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like aggregate Principal Amount of the
Company's outstanding 9% Senior Subordinated Notes (the "Old Notes" and,
together with the New Notes, the "Notes").
The terms and conditions of the exchange offer are set forth in a
Prospectus dated , 1997 (as the same may be amended or supplemented from time to
time, the "Prospectus") and in the related Letter of Transmittal, which together
constitute the "Exchange Offer." The registered holders of the Notes are
hereinafter referred to as the "Holders." Capitalized terms used herein and not
defined shall have the respective meanings ascribed thereto in the Prospectus.
References hereinafter to "you" shall refer to the First Union National Bank of
Maryland.
The Exchange Offer is expected to be commenced by the Company on or about
, 1997. The Letter of Transmittal accompanying the Prospectus is to be used
by the Holders to accept the Exchange Offer, and contains certain instructions
with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on , 1997
or on such later 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 no later than 9:00
a.m., New York City time, on the next business day after 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 "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 agree 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" and
as specifically set forth herein and such duties which are necessarily
incidental thereto; provided, however, that in no way will your general duty
to act in good faith be discharged by the foregoing.
2. You will establish an 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 will examine each of the Letters of Transmittal, certificates for
Old Notes and confirmations of book-entry transfers into your account at the
Book-Entry Transfer Facility and any Agent's Message or 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 advise the Company of
such irregularity. If the Company does not waive the irregularity as provided
in paragraph 4, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer or the Secretary of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such officer of the Company in writing, 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 section of
the Prospectus captioned "The Exchange Offer -- Procedures for Tendering Old
Notes" or in the Letter of Transmittal 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 paragraph 5, Old Notes which the
Company or any other party designated by the Company in writing shall approve
as having been properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept their instructions with respect
to disposition of such Old Notes.
7. You will 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 to so act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled. You will 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 transfer agent for split-up
and return any untendered Old Notes to the holder (or to 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 the Company's acceptance, promptly after
the Expiration Date, of all Old Notes properly tendered and you, on behalf of
the Trust, will exchange such Old Notes for New Notes and cause such Old
Notes to be canceled. 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 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
2
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 facsimile thereof) with any required signature
guarantees (or in lieu thereof an Agent's Message) and any other required
document.
9. 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 (such notice, if given orally, shall be promptly confirmed in
writing) by the Company to you.
10. 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 "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 Notes (or effect the appropriate book-entry transfer of the unaccepted
Old Notes), and return any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
11. All certificates for reissued Old Notes or for unaccepted Old Notes
shall be forwarded by (a) first-class 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 or (b) by
registered mail insured separately for the replacement value of such
certificates.
12. 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.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
Old Notes, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer; provided,
however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or omitted
by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a
result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any written or
oral instructions delivered to you pursuant hereto, and may reasonably
rely on and shall be protected in acting in good faith in reliance upon
any certificate, instrument, opinion, notice, letter, facsimile 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;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and the effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall
in good faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company with respect to the Exchange
Offer;
3
(f) 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
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written 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 such written opinion of such counsel.
14. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and
the Notice of Guaranteed Delivery, 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 and that
such information shall be consistent with the terms of the Exchange Offer and
the Letter of Transmittal. The Company will furnish you with copies of such
documents at your request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, care of Xxxxxxx Xxxxxxxxxx
at: 0000 X. 00xx Xxxxxx, Xxxxxxxxx, XX 00000.
15. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Company and Xxxxxx, Xxxxxx & Xxxxxxxxx,
counsel for the Company, and such other person or persons as they may
request, weekly, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the principal amount of the Old Notes
that 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 and items
covered by Notices of Guaranteed Delivery. In addition, you will also inform,
and cooperate in making available to, the Company or any such other person or
persons as the Company may request from time to time prior to the Expiration
Date, such other information as they reasonably request. You shall prepare a
list of persons who failed to tender or whose tenders were not accepted and
the aggregate principal amount of Old Notes not tendered or Old Notes not
accepted and deliver said list to the Company at least seven days prior to
the Expiration Date. You shall also prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered
and the aggregate principal amount of Old Notes accepted and deliver said
list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and 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 or destroying them if authorized by the
Company.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of [$ ] and you shall be entitled to reimbursement of your
expenses (including fees and expenses of your counsel, which fees are
expected under normal circumstances to be not in excess of [$ ])
incurred in connection with the Exchange Offer.
18. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined
each of them to the extent necessary to perform your duties hereunder. 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 the duties, liabilities and indemnification of you as
Exchange Agent, which shall be controlled by this Agreement.
19. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees, arising out of or in connection with
the acceptance or administration of your duties hereunder, including,
4
without limitation, in connection with any act, omission, delay or refusal
made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer of Old Notes
reasonably 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 negligence, willful breach of this Agreement,
willful misconduct or bad faith. In no case shall the Company be liable under
this indemnity with respect to any claim against you unless the Company shall
be notified by you, by letter or by facsimile confirmed by letter, 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 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 reasonably satisfactory to
you to defend such suit. You shall not compromise or settle any such action
or claim without the consent of the Company.
20. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of
Maryland 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.
21. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
22. 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.
23. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled 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.
24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address
or telecopy number set forth below:
If to the Company:
Xxxxxxxx Broadcast Group, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Quicksilver, Esq.
With copies to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
5
Xxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: C. Xxxxx Xxxxx, Esq.
If to the Exchange Agent:
First Union National Bank of Maryland
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxxxx X. Xxxxxxx
25. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 17 and 19 shall survive the termination of this
Agreement. Except as provided in Section 16, upon any termination of this
Agreement, you shall promptly deliver to the Company any funds or property
(including, without limitation, Letters of Transmittal and any other
documents relating to the Exchange Offer) then held by you as Exchange Agent
under this Agreement.
26. 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.
XXXXXXXX BROADCAST GROUP, INC.
By:____________________________
Name:
Title:
Accepted as of the date first above written:
FIRST UNION NATIONAL BANK OF MARYLAND
By:____________________________
Name:
Title:
6
