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EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of [_______], 1999 between FIRST
UNION NATIONAL BANK, a national banking association, as Exchange Agent (the
"Agent") and WORLD ACCESS, INC., a corporation organized under the laws of the
State of Delaware ("WAXS").
WAXS and FACILICOM INTERNATIONAL, INC. ("FaciliCom") have entered into
an Agreement and Plan of Merger, dated as of August 17, 1999 (the "Merger
Agreement") pursuant to which WAXS and FaciliCom have agreed to merge (the
"Merger"). As a condition to the Merger, certain FaciliCom noteholders have
entered into an Agreement to Exchange and Consent, dated as of [_____________],
1999 with WAXS (the "Agreement to Exchange and Consent") in which certain
holders of FaciliCom's outstanding 10 1/2 % Series B Senior Notes due 2008 (the
"FaciliCom Notes") have agreed to exchange their FaciliCom Notes for Exchange
Notes, Exchange Shares and a Cash Payment (each as defined below).
In accordance with the Agreement to Exchange and Consent, WAXS
proposes to exchange (the "Exchange Offer") for up to $300,000,000 aggregate
principal amount of FaciliCom Notes the following consideration (the "Exchange
Consideration"): (i) an equal aggregate principal amount of its 13.25% Senior
Notes due 2008 (the "Exchange Notes"), (ii) shares of WAXS common stock, par
value $0.01 per share, having a market value of $50 for each $1,000 principal
amount of FaciliCom Notes tendered and accepted for exchange (the "Exchange
Shares") and (iii) a payment of $10 in cash for each $1,000 principal amount of
FaciliCom Notes tendered and accepted for exchange (the "Cash Payment"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus and consent solicitation dated , 1999 (the
"Prospectus"), proposed to be distributed to all record holders of the FaciliCom
Notes. The FaciliCom Notes, the Exchange Notes and the Exchange Shares are
collectively referred to herein as the "Securities."
The Exchange Offer will terminate at 12:00 p.m. New York City time
on [______________], 1999, unless extended by WAXS in its sole discretion (the
"Expiration Date"). The Exchange Notes are to be issued by WAXS pursuant to the
terms of an indenture dated as of [_______________], 1999 (the "Indenture")
between WAXS and First Union National Bank, as trustee (the "Trustee").
Subject to the provisions hereof, WAXS hereby appoints and the Agent
hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the FaciliCom Notes
in accordance with the form of letter of transmittal to be mailed to holders of
the FaciliCom Notes pursuant to the Prospectus (the "L/T") and with the terms
and conditions set forth herein and under the caption "The Exchange Offer" in
the Prospectus.
WAXS expressly reserves the right to extend, amend or terminate the
Exchange Offer, and not to accept for exchange any FaciliCom Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
specified in the Prospectus under the caption "The Exchange Offer-Certain
Conditions to the Exchange Offer." WAXS will give oral (confirmed in writing)
or written notice of any extension, amendment, termination or nonacceptance to
the Agent as promptly as practicable.
The Agent has received the following documents in connection with its
appointment (the "Exchange Offer Documents"):
1. the L/T, including Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9;
2. a form of Notice of Guaranteed Delivery;
3. the Prospectus;
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4. a cover letter to clients; and
5. a cover letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
The Agent is authorized and hereby agrees as follows:
(a) to establish an account with respect to the FaciliCom
Notes at the Depository Trust Company ("DTC") 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
DTC's systems shall be able to make book-entry delivery of FaciliCom
Notes by causing DTC to transfer such FaciliCom Notes into the Agent's
account in accordance with DTC's procedure for such transfer;
(b) that tenders of FaciliCom Notes may be made only as set
forth in the L/T and in the section of the Prospectus captioned "The
Exchange Offer" and that FaciliCom Notes shall be considered properly
tendered to the Agent only when tendered in accordance with the
procedures set forth herein and therein;
(c) to address, and deliver by hand or next day courier, a
complete set of the Exchange Offer Documents to each person who, prior
to the Expiration Date, is or becomes a registered holder of FaciliCom
Notes promptly after such person becomes a registered holder of
FaciliCom Notes;
(d) to receive all tenders of FaciliCom Notes made pursuant
to the Exchange Offer and stamp the L/T with the day, month and
approximate time of receipt;
(e) to examine each L/T and FaciliCom Notes received or
agent's message (as defined in the Prospectus) and book-entry
transfer, as the case may be, to determine whether: (i) the L/T and
any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and book-entry
confirmations are in due and proper form and contain the information
required to be set forth therein and (ii) the FaciliCom Notes have
otherwise been properly tendered. In each case where the L/T or any
other document has been improperly completed or executed or book-entry
confirmations are not in due and proper form and do not contain
adequate information or any of the certificates for FaciliCom Notes
are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offer exists, the Agent
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. The Agent shall
be entitled to rely on the electronic messages sent by DTC regarding
ATOP delivery of the Notes to the Agent's account at DTC from the DTC
participants listed on the DTC position listing provided to the Agent;
(f) to take such actions necessary and appropriate to correct
any irregularity or deficiency associated with any tender not in
proper order;
(g) to follow instructions given by the Chief Executive
Officer and President, Executive Vice President and Chief Financial
Officer, or Corporate Controller and Secretary of WAXS or any other
party designated by such an officer in writing (the "Designated
Officers"), with respect to the waiver of any irregularities or
deficiencies associated with any tender;
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(h) to hold all valid tenders subject to further instructions
from any Designated Officer;
(i) to render a report via facsimile, in the form of Exhibit
A attached hereto, on each business day during the Exchange Offer to
Mark A. Gergel of WAXS at (404) 365-9847, Leonard A. Silverstein, Esq.
and L. Briley Brisendine, Jr., Esq. of Long Aldridge & Norman LLP,
counsel to WAXS, at (404) 527-4198 and such other persons as any of
them may direct;
(j) to follow and act upon any written amendments,
modifications or supplements to these instructions, any of which may
be given to the Agent by any Designated Officer of WAXS or such other
person or persons as they shall designate in writing;
(k) to return to the presenters, in accordance with the
provisions of the L/T, any FaciliCom Notes that were not received in
proper order and as to which the irregularities or deficiencies were
not cured or waived;
(l) in the event the Exchange Offer is consummated, to
deliver the Exchange Consideration to tendering noteholders, in
accordance with the instructions of such noteholders specified in the
respective L/T's, as soon as practicable after consummation thereof;
(m) to determine that all endorsements, guarantees,
signatures, authorities, stock transfer taxes (if any) and such other
requirements are fulfilled in connection with any request for issuance
of the Exchange Consideration in a name other than that of the
registered owner of the FaciliCom Notes;
(n) to deliver to, or upon the order of, WAXS all FaciliCom
Notes received under the Exchange Offer, together with any related
assignment forms and other documents by first class mail, return
receipt requested under a blanket surety bond protecting the Agent and
WAXS from loss or liability arising out of the non-receipt or
non-delivery of such FaciliCom Notes or registered mail insured
separately for the replacement value of each such FaciliCom Notes; and
(o) subject to the other terms and conditions set forth in
this Agreement, to take all other actions reasonable and necessary in
the good faith judgment of the Agent to effect the foregoing matters.
The Agent shall:
(a) have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing by you and WAXS;
(b) not be required to refer to any documents for the
performance of its obligations hereunder other than this Agreement,
the Exchange Offer Documents; other than such documents, the Agent
will not be responsible or liable for any terms, directions or
information in the Prospectus or any other document or agreement
unless the Agent specifically agrees thereto in writing;
(c) not be required to act on the directions of any person,
including the persons named above, unless WAXS provides a corporate
resolution to the Agent or other evidence satisfactory to the Agent of
the authority of such person;
(d) not be required to, and shall make no representations and
have no responsibilities as to, the validity, accuracy, value or
genuineness of (i) the Exchange Offer, (ii) any FaciliCom Notes, L/Ts
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or documents prepared by WAXS in connection with the Exchange Offer or
(iii) any signatures or endorsements, other than its own;
(e) not be obligated to take any legal action hereunder that
might, in its judgment, involve any expense or liability, unless it
has been furnished with reasonable indemnity by WAXS;
(f) be able to rely on and shall be protected in acting on
the written or oral instructions with respect to any matter relating
to its actions as Agent specifically covered by this Agreement, of any
Designated Officer of WAXS;
(g) be able to rely on and shall be protected in acting upon
any certificate, instrument, opinion, notice, letter, telegram or any
other document or security delivered to it and believed by it
reasonably and in good faith to be genuine and to have been signed by
the proper party or parties;
(h) not be responsible for, or liable in any respect on
account of, the identity, authority or rights of any person executing
or delivering or purporting to execute or deliver any document or
property under this Agreement and shall have no responsibility with
respect to the use or application of any property delivered by it
pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it
(including counsel for WAXS or staff counsel of the Agent), 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 by it hereunder in good faith and in accordance with advice
or opinion of such counsel;
(j) not be called on at any time to advise, and shall not
advise, any person delivering an L/T pursuant to the Exchange Offer as
to the value of the consideration to be received;
(k) not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own gross
negligence, willful misconduct or bad faith;
(l) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof, unless
evidenced by a writing delivered to the Agent signed by the proper
authority or authorities and, if the Agent's duties or rights are
affected, unless the Agent shall give its prior written consent
thereto;
(m) have no duty to enforce any obligation of any person to
make delivery, or to direct or cause any delivery to be made, or to
enforce any obligation of any person to perform any other act;
(n) have the right to assume, in the absence of written
notice to the contrary from the proper person or persons, that a fact
or an event by reason of which an action would or might be taken by
the Agent does not exist or has not occurred without incurring
liability for any action taken or omitted, or any action suffered by
the Agent to be taken or omitted, in good faith or in the exercise of
the Agent's best judgment, in reliance upon such assumption;
(o) not be 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;
(p) waive any lien, encumbrance or right of set-off
whatsoever that the Agent may have with respect to funds deposited
with the Agent for the payment of transfer taxes by reason of amounts,
if
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any, borrowed by WAXS or any of its subsidiaries or affiliates
pursuant to any loan or credit agreement with the Agent or for
compensation owed to the Agent hereunder; and
(q) arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and file any appropriate reports with the
Internal Revenue Service. WAXS understands that the Agent is required
to deduct 31% on payments to holders who have not supplied their
correct Taxpayer Identification Number or required certification. Such
funds will be turned over to the Internal Revenue Service in
accordance with applicable regulations.
The Agent shall be entitled to compensation as set forth in Exhibit B
attached hereto.
WAXS covenants and agrees to reimburse the Agent for, indemnify it
against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of one firm of counsel and allocated
cost of staff counsel) that may be paid or incurred or suffered by it or to
which it may become subject without gross negligence, willful misconduct or bad
faith on its part by reason of or as a result of its compliance with the
instructions set forth herein or with any additional or supplemental written or
oral instructions delivered to it pursuant hereto, or which may arise out of or
in connection with the administration and performance of its duties under this
Agreement. WAXS agrees to promptly notify the Agent of any extension of the
Expiration Date.
This Agreement shall be construed and enforced in accordance with the laws
of the State of Georgia and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of the parties
hereto. The parties agree to submit to the exclusive jurisdiction of the
federal or state courts located in the State of Georgia, Fulton County.
Unless otherwise expressly provided herein, all notices, requests, demands
and other communications hereunder shall be in writing, shall be delivered by
hand or reputable overnight courier, facsimile or by First Class Mail, postage
prepaid, shall be deemed given when received and shall be addressed to the
Agent and WAXS at the respective addresses listed below or to such other
addresses as they shall designate from time to time in writing, forwarded in
like manner.
If to the Agent, to:
First Union National Bank
1100 First Union Plaza
999 Peachtree Street
Attention: Mr. Brian Justice
Telephone: (404) 827-7352
If to WAXS, to:
World Access, Inc.
945 East Paces Ferry Road, Suite 2200
Atlanta, Georgia 30326
Attention: Mark A. Gergel
Telephone: (404) 231-2025
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with copies to:
(which shall not
constitute notice)
Long Aldridge & Norman LLP
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308
Attention: Leonard A. Silverstein, Esq.
Telephone: (404) 527-4390
Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
the indemnification and compensation provisions of this Agreement shall survive
the termination of this Agreement. Upon any termination of this Agreement, the
Agent shall promptly deliver to WAXS any certificates for Securities, funds or
property then held by the Exchange Agent under this Agreement.
This Agreement shall be binding and effective as of the date hereof.
(Signatures begin on following page)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by their officers thereunto duly authorized, all as
of the day and year first above written.
"AGENT:"
FIRST UNION NATIONAL BANK
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[CORPORATE SEAL]
"WAXS:"
WORLD ACCESS, INC.
By:
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Name:
---------------------------------
Title:
--------------------------------
[CORPORATE SEAL]
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EXHIBIT A
SAMPLE REPORT
Date:
-------------------------------------------
Report Number:
----------------------------------
As of Date:
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Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated ____________________,
1999, we hereby render the following report:
Principal Amount previously received:
Principal Amount received today:
Principal Amount received against Guaranteed Deliveries:
Principal Amount withdrawn today:
TOTAL PRINCIPAL AMOUNT RECEIVED TO DATE:
Very truly yours,
Corporate Trust Dept.
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EXHIBIT B
COMPENSATION
The Agent, for serving as the Exchange Agent pursuant to this
Agreement, shall receive a fee of [$ ], payable upon commencement of the
Exchange Offer, and reimbursement of the Agent's out-of-pocket expenses
incurred in connection with completing its duties pursuant to this Agreement.
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