Exhibit 99.3
March __, 1998
EXCHANGE AGENT AGREEMENT
United States Trust Company of New York
114 West 47th Street
New York, New York 10023-1532
Ladies and Gentlemen:
Brill Media Company, LLC, a Virginia limited liability company ("BMC") and
Brill Media Management, Inc., a Virginia corporation ("Media" and collectively
with BMC, the "Company"), proposes to make an offer (the "Exchange Offer") to
exchange (i) its 12% Senior Notes Due 2007 (the "Original Notes") for its
registered Series B 12% Senior Notes Due 2007 (the "Exchange Notes"), and (ii)
its outstanding Appreciation Notes due 2007 (the "Original Appreciation Notes"
collectively with the Original Notes, the "Original Securities") for its Series
B Appreciation Notes due 2007 (the "Exchange Appreciation Notes" collectively
with the Exchange Notes, the "Exchange Securities"). The terms and conditions
of the Exchange Offer as currently contemplated are set forth in a prospectus,
dated March __, 1998 (the "Prospectus"), proposed to be distributed to all
record holders of the Original Securities. The Original Securities and the
Exchange Notes, the Original Appreciation Notes, and the Exchange Appreciation
Notes are collectively referred to herein as the "Notes" or the "Securities."
The Company hereby appoints United States Trust Company of New York to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to United States Trust Company of
New York.
The Exchange Offer is expected to be commenced by the Company on or about
March __, 1998. The Letter of Transmittal accompanying the Prospectus is to be
used by the holders of the Original Securities to accept the Exchange Offer, and
contains instructions with respect to the delivery of Original Securities
tendered. The Exchange Agent's obligations with respect to receipt and
inspection of the Letter of Transmittal in connection with this Exchange Offer
shall be satisfied for all purposes hereof by inspection of the electronic
message transmitted to the Exchange Agent by Exchange Offer participants in
accordance with the Automated Tender Offer Program ("ATOP") of The Depository
Trust Company ("DTC"), and by otherwise observing and complying with all
procedures established by DTC in connection with ATOP.
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 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 (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, and in such case the term "Expiration
Date" shall mean the time and date on which such Exchange Offer as so
extended shall expire.
The Company expressly reserves the right to delay, amend or terminate
the Exchange Offer, and not to accept for exchange any Original Securities
not theretofore accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Prospectus under the
captions "The Exchange Offer - Expiration Date; Extensions; Amendments" and
"Conditions." The Company will give to you as promptly as practicable oral
(confirmed in writing) or written notice of any delay, amendment, termination
or nonacceptance.
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 herein or in the section of the Prospectus captioned
the "The Exchange Offer" and such duties which are necessarily incidental
thereto.
2. You will establish an account with respect to the Original
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 Original Securities by causing the Book-Entry Transfer
Facility to transfer such Original 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 Original
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 Original 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 in
the Prospectus and (ii) the Original 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 Original 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 necessary or advisable to cause such irregularity
to be corrected.
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4. With the approval of the President and the Chief Executive Officer,
or any Vice President of Media (such approval, if given orally, promptly to
be confirmed in writing) or any other party designated by such officer in
writing, you are authorized to waive any irregularities in connection with
any tender of Original Securities pursuant to the Exchange Offer.
5. Except as set forth in the last sentence of the third introductory
paragraph of this Agreement, tenders of Original Securities 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" and
Original Securities 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
Securities which the President and Chief Executive Officer, or any Vice
President of Media or any other party designated by any such officer in
writing shall approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, promptly shall be
confirmed in writing).
6. You shall advise the Company with respect to any Original
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Original Securities.
7. You shall accept tenders:
(a) in cases where the Original 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 Original
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Securities where so
indicated and as permitted in the Letter of Transmittal and deliver the
Original Securities to the transfer agent for split-up and return any
untendered Original 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,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Original Securities properly tendered and you, on
behalf of the Company, will exchange such Original Securities for Exchange
Notes and cause such Original
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Securities to be canceled. Delivery of Exchange Notes will be made on behalf
of the Company by you at the rate of $1,000 principal amount of Exchange
Notes for each $1,000 principal amount of the Original Securities tendered
promptly after notice (such notice if given orally, promptly to be confirmed
in writing) of acceptance of said Original Securities by the Company;
provided, however, that in all cases, Original Securities tendered pursuant
to the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Original 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 facsimile thereof) with
any required signature guarantees and any other required document. You shall
issue Exchange Notes 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, Original 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 Original
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
Original Securities tendered shall be given (such notices if given orally,
promptly shall be 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 Original Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the captions "The Exchange Offer - Terms of the Exchange
Offer" "--Expiration Date; Extensions; Amendments" and "--Conditions" or
otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Original 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 reissued Original Securities, unaccepted Original Securities
or Exchange Notes shall be forwarded by (a) first-class mail, postage
pre-paid 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 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 persons 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 Original Securities 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;
(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 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
notice or oral instructions (confirmed in writing) from any officer of Media
or the manager of BMC with respect to the Exchange Offer;
(f) shall not advise any person tendering Original 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
Original Securities;
(g) may consult with counsel and the written advice or 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 reliance thereon.
15. You shall send to all holders of Original Securities a copy of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
used in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company to commence the Exchange
Offer and take such other action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
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appropriate) to furnish copies of the Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of
Original Securities and 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 at your request. All
other requests for information relating to the Exchange Offer shall be
directed to Brill Media Management, Inc., Attention: Alan R. Brill, at the
Company's offices at 420 N.W. Fifth Street, Evansville, Indiana 47708;
telephone no. (812) 423-6200.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Donald TenBarge of the Company, and
such other person or persons as the Company may request in writing, not later
than 7:00 p.m., New York City time, each business day, and more frequently if
reasonably requested, up to and including the Expiration Date, as to the
number of Original 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 as the Company requests in writing from time to time prior to the
Expiration Date of such other information as it reasonably requests. 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 Original Securities tendered
and the aggregate principal amount of Original 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 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 customarily preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and other
surplus materials in accordance with your customary procedures.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by
the Company, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket
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expenses (including the fees and expenses of your counsel) as you and the
Company have agreed in a separate letter.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer
attached hereto and further acknowledge that you have examined each of them.
Any inconsistency between this Agreement, on the one hand, and the
Prospectus, the Letter of Transmittal and such other forms (as they may be
amended from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except (i) with respect to the duties, liabilities
and indemnification of you as Exchange Agent which shall be controlled by
this Agreement, and (ii) that the last sentence of the third introductory
paragraph shall control.
21. 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 and expenses, arising out of or in
connection with your appointment as Exchange Agent and the performance of
your duties hereunder, including, without limitation, 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 Securities 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 Securities; 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 misconduct or bad faith. The Company's and the Exchange Agent's
obligations under this paragraph 21 shall survive the termination of this
Agreement and the discharge of your obligation hereunder and any other
termination of this Agreement under any federal or state bankruptcy law.
22. 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 prepare and file such tax information forms
as are appropriate or required to be prepared by you with respect to any
payments made by you to any Note holder with the Internal Revenue Service.
The Company understands that you are 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.
23. 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 Original Securities your check in the amount of
all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Original Securities; provided, however, that you shall reimburse the Company
for amounts refunded to
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you in respect of your payment of any such transfer taxes, at such time as
such refund is received by you.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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, as its address
or telecopy number set forth below:
If to the Company:
Brill Media Management, Inc.
420 N.W. Fifth Street
Evansville, Indiana 47708
Facsimile: (812) 428-4021
Attention: Alan R. Brill
If to the Exchange Agent:
United States Trust Company of New York
114 West 47th Street
New York, New York 10023-1532
Facsimile: (212) 852-1627
Attention: Corporate Trust Administration
Department
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Company any
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certificates for Original Securities, 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.
30. 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.
BRILL MEDIA COMPANY, LLC
By: BRILL MEDIA MANAGEMENT, INC.
By:________________________________
Name: Alan R. Brill
Title: President
BRILL MEDIA MANAGEMENT, INC.
By:________________________________
Name: Alan R. Brill
Title: President
Accepted as of the date
first above written:
UNITED STATES TRUST COMPANY
OF NEW YORK
By:_________________________
Name:
Title:
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