EXHIBIT 99.3
, 1998
FORM OF EXCHANGE AGENT AGREEMENT
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Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Transtel Pass Through Trust, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), proposes to make an offer (the
"Exchange Offer") to exchange all outstanding 12 1/2% Pass Through Trust
Certificates due 2007, representing interests in 12 1/2% Senior Notes due 2007
issued by Transtel S.A. (the "Company") (the "Original Certificates") for
12 1/2% Pass Through Exchange Certificates due 2007, representing interests in
12 1/2% Senior Notes due 2007 issued by the Company (the "Exchange
Certificates"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"). The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, dated , 1998
(the "Prospectus"), proposed to be distributed to all record holders of the
Original Certificates. The Original Certificates and the Exchange Certificates
are collectively referred to herein as the "Certificates." Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to them
in the Prospectus.
The Trust hereby appoints Marine Midland Bank to act as exchange agent (the
"Exchange Agent") in connection with the Exchange Offer. References hereinafter
to "you" shall refer to Marine Midland Bank.
The Exchange Offer is expected to be commenced by the Trust on or about
, 1998. The Letter of Transmittal accompanying the Prospectus is to be used by
the holders of the Original Certificates (the "Original Certificateholders") to
accept the Exchange Offer and contains certain instructions with respect to (i)
the delivery of certificates for Original Certificates tendered in connection
therewith and (ii) the book entry transfer of Certificates to the Exchange
Agent's account at The Depository Trust Company ("DTC").
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_______________________ , 1998 or on such later date or time to which the
Trust or the Company may extend the Exchange Offer (the "Expiration Date").
Subject to the terms and conditions set forth in the Prospectus, the Trust and
the Company expressly reserve the right to extend the Exchange Offer from time
to time by giving oral (to be confirmed in writing) or written notice to you no
later than 5:00 p.m., New York City time, on the business day following the
previously scheduled Expiration Date.
The Trust and the Company expressly reserve the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Original Certificates 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 Trust or the Company
will give oral (to be confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Certificates 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" 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
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faith be discharged by the foregoing.
2. You will establish an account with respect to the Original
Certificates at DTC (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 Original Certificates by
causing the Book-Entry Transfer Facility to transfer such Original Certificates
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, certificates for
Original Certificates (or 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 Original Certificateholders 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 Original Certificates 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 Original
Certificates 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 necessary or advisable to cause such
irregularity to be corrected.
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4. With the approval of the Pass Through Trustee of the Trust or any
person designated in writing by the Company (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by the Pass Through Trustee or Designated Officer in writing, you are
authorized to waive any irregularities in connection with any tender of Original
Certificates pursuant to the Exchange Offer.
5. Tenders of Original Certificates may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Original Certificates" and Original
Certificates 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, Original Certificates
which the Pass Through Trustee of the Trust or Designated 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 confirmed in
writing).
6. You shall advise the Trust and the Company with respect to any Original
Certificates delivered subsequent to the Expiration Date and accept their
instructions with respect to disposition of such Original Certificates.
7. You shall accept tenders:
a) in cases where the Original Certificates 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 such person's authority to so act is submitted; and
c) from persons other than the registered Original Certificateholder
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Certificates where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Original Certificates to the transfer agent for split-up and return any
untendered Original Certificates 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 Trust will notify you (such notice, if given orally, to be confirmed
in writing) of the Company's and the Trust's acceptance, promptly after the
Expiration Date, of all Original Certificates properly tendered and you, on
behalf of the Trust, will
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exchange such Original Certificates for Exchange Certificates and cause such
Original Certificates to be canceled. Delivery of Exchange Certificates will be
made on behalf of the Trust by you in $1,000 denominations; provided, however,
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that in all cases, Original Certificates tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such
Original Certificates (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 an Agent's Message in lieu thereof) and any other required
documents. You shall issue Exchange Certificates only in denominations of $1,000
or any integral multiple thereof. Original Certificates may be tendered in whole
or in part in minimum denominations of $250,000 and integral multiples of $1,000
in excess thereof, provided that if any Original Certificates are tendered for
exchange in part, the untendered amount must be $250,000 or any integral
multiple 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, Original Certificates tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company and the Trust shall not be required to exchange any
Original Certificates tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company and the Trust
not to exchange any Original Certificates tendered shall be given (such notice,
if given orally, shall be confirmed in writing) by the Company or the Trust to
you.
11. If, pursuant to the Exchange Offer, the Company or the Trust does
not accept for exchange all or part of the Original Certificates 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 Original Certificates (or effect the appropriate book-entry transfer
of the unaccepted Original Certificates), 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 Original Certificates, unaccepted
Original Certificates or for Exchange Certificates shall be forwarded by (a)
first-class mail under a blanket surety bond protecting you, the Trust 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 each of such certificates.
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:
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a) 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 Original Certificates 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;
provided, however, that in no way will your general duty to act in good faith be
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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) may 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 act upon any tender, statement, request, agreement 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 reasonably believe
to be genuine or to have been signed or represented by a proper person or
persons;
e) may conclusively rely on and shall be protected in acting upon written or
oral instructions from the Pass Through Trustee of the Trust or from any
Designated Officer of the Company with respect to the Exchange Offer;
f) shall not advise any person tendering Original Certificates 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 Original Certificates;
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.
15. You shall take such action as may from time to time be requested by
the Pass Through Trustee of the Trust, any Designated Officer of the Company, or
Xxxxx Xxxxxxxxxx LLP, special counsel for the Company and the Trust, (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 or the Trust, 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 or the Trust will furnish you with copies
of such documents at your request. All other
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requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: Xxxxxxxxx X. Xxxxx.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxxxx X. Xxxxx of the Company, and
such other person or persons as the Trust or the Company may request, daily (and
more frequently during the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date, as to the amount
of the Original Certificates 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 and items covered by Notices of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
Company and the Trust or any such other person or persons as the Company or the
Trust requests from time to time prior to the Expiration Date of such other
information as they or such person reasonably request. Such cooperation shall
include, without limitation, the granting by you to the Company, the Trust and
such person as the Company or the Trust 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 and the Trust shall have
received information in sufficient detail to enable them to decide whether to
extend the Exchange Offer. You shall prepare a list of persons who failed to
tender or whose tenders were not accepted and the aggregate amount of Original
Certificates not tendered or Original Certificates not accepted and deliver said
list to the Company and the Trust 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 amount of Original Certificates tendered and the
aggregate amount of Original Certificates 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 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 at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation and reimbursement of reasonable out-of-pocket
expenses as set forth on Schedule I attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal 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.
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20. (a) 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 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 Original Certificates 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 Original Certificates; provided, however, that the
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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
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 notice of
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 thereafter be liable for the fees and expenses of
any counsel retained by you so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit; provided that the Company
shall not be entitled to assume the defense of any such suit if the named
parties to such suit include both the Company and you and representation of both
parties by the same legal counsel would, in the written opinion of counsel to
you, be inappropriate due to actual or potential conflicting interests between
them.
(b) You agree that, without the prior written consent of the Company
(which consent shall not be unreasonably withheld or delayed), you will not
settle, compromise or consent to the entry of judgment in connection with any
pending or threatened claim, action, or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not you or the Company or any of its
officers, directors or controlling shareholders is an actual or potential party
to such claim, action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Company and its officers,
directors and controlling shareholders from all liability arising out of such
claim, action or proceeding.
21. 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.
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22. 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 shall
constitute one and the same agreement.
23. 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.
24. 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 each party thereto. This Agreement may not be modified
orally.
25. 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:
Transtel X.X.
Xxxxx 00X, Xx. 0-00
00xx Xxxxx
Xxxx, Xxxxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxx
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With a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to the Trust:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: TranstelPass Through Trustee
If to the Exchange Agent:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Transtel-Exchange Agent
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
paragraphs 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 Certificates 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.
27. 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.
TRANSTEL S.A.
By:
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Name:
Title:
TRANSTEL PASS THROUGH TRUST
By: Wilmington Trust Company,
as Pass Through Trustee
By:
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Name:
Title:
Accepted as of the date
first above written:
MARINE MIDLAND BANK,
as Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
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EXPENSES
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