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EXHIBIT 4.26
ESCROW AND DISBURSEMENT AGREEMENT
This ESCROW AND DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
December 20, 1996, among Bankers Trust Company, as escrow agent (in such
capacity, the "Escrow Agent"), First Trust of New York, National Association,
as Trustee (in such capacity, the "Trustee") under the Indenture (as defined
herein), and Heartland Wireless Communications, Inc., a Delaware corporation
(the "Company").
RECITALS
A. Pursuant to the Indenture, dated as of December 20, 1996 (the
"Indenture"), between the Company and the Trustee, the Company is issuing
$125,000,000 aggregate principal amount of its 14% Senior Notes due 2004 (the
"Notes").
B. As security for its obligations under the Notes and the Indenture,
the Company hereby grants to the Trustee, for the benefit of the holders of the
Notes, a security interest, subject to and pending disbursement pursuant to
this Agreement, in the Escrow Account (as defined herein).
C. The parties have entered into this Agreement in order to set forth
the conditions upon which, and the manner in which, funds will be disbursed
from the Escrow Account and released from the security interest and lien
described above.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows;
1. Defined Terms. In addition to any other defined terms used herein,
the following terms shall constitute defined terms for purposes of this
Agreement and shall have the meanings set forth below:
"Affiliate" of any specified person means (i) any other person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified person or (ii) any other person who is a director
or officer (A) of such specified person, (B) of any subsidiary of such
specified person or (C) of any person described in clause (i) above or (iii)
any person in which such person has, directly or indirectly, a 5% or greater
voting or economic interest or the power to control. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management or policies of such person whether
through the ownership
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of voting securities or by contract or otherwise and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Applied" means that disbursed funds have been applied (i) to the
payment of interest on the Notes, (ii) to the payment of principal of and
premium, if any, on the Notes, upon a repurchase or redemption thereof in
accordance with Section 3.07(a) or Section 4.16 of the Indenture; or (iii) to
any combination of the foregoing.
"Available Funds" means (A) the sum of (i) the Initial Escrow Amount
and (ii) interest earned or dividends paid on the funds in the Escrow Account
(including holdings of Marketable Securities), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"Collateral" shall have the meaning given in Section 5(a) hereof.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A" (or higher) according to Standard &
Poor's ("S&P") or Xxxxx'x Investors Service, Inc. ("Moody's") at the time as of
which any investment or rollover therein is made.
"Escrow Account" shall mean an escrow account established pursuant to
Section 2 hereof.
"Escrow Account Statement" shall have the meaning given in section
2(f) hereof.
"Initial Escrow Amount" shall mean $22,012,265.59 of the net proceeds
from the offering of the Notes.
"Interest Payment Date" means April 15 and October 15 of each year,
commencing on April 15, 1997.
"Issue Date" means December 20, 1996.
"Marketable Securities" means
(i) U.S. Government Securities (as defined in the Indenture);
(ii) Other Government Securities;
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(iii) any certificate of deposit maturing not more than 270 days after
the date of acquisition issued by, or time deposit of, an
Eligible Institution;
(iv) commercial paper maturing not more than 270 days after the date
of acquisition issued by a corporation (other than an Affiliate
of the Company) with a rating, at the time as of which any
investment therein is made, of "A_1" (or higher) according to
S&P or "P-1" (or higher) according to Moody's;
(v) any banker's acceptances or money market deposit accounts issued
or offered by an Eligible Institution; and
(vi) any fund investing exclusively in investments of the types
described in clauses (i) through (v) above.
"Other Government Securities" means any security issued or guaranteed
as to principal and interest by the United States of America or by a person
controlled or supervised by and acting as an instrumentality of the government
of the United States pursuant to authority granted by the Congress of the
United States; or any certificate of deposit for any of the foregoing.
"Payment Notice and Disbursement Request" means a notice sent by the
Trustee to the Escrow Agent notifying the Escrow Agent of an upcoming Interest
Payment Date or other payment date in respect of the Notes and requesting a
disbursement, in substantially the form of Exhibit A hereto. Each Payment
Notice and Disbursement Request shall be signed by an officer of the Trustee
designated in a certificate of the Trustee setting forth specimen signatures of
authorized officers delivered to the Escrow Agent.
2. Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent. The Company and the Trustee hereby
appoint the Escrow Agent, and the Escrow Agent hereby accepts appointment, as
escrow agent, under the terms and conditions of this Agreement.
(b) Establishment of Escrow Account. Concurrently with the
execution and delivery hereof, the Escrow Agent shall establish the Escrow
Account at its office located at Four Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
Subject to Section 3, Section 5 and the other terms and conditions of this
Agreement, all funds accepted by the Escrow Agent pursuant to this Agreement
shall be held for the benefit of the holders of the Notes. All such funds
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shall be held in the Escrow Account until disbursed in accordance with the
terms hereof. The Escrow Account shall be under the sole dominion and control
of the Escrow Agent for the benefit of the holders of the Notes. Concurrently
with the execution and delivery hereof, the Company shall deliver the initial
Escrow Amount to the Escrow Agent for deposit into the Escrow Account against
the Escrow Agent's written acknowledgment and receipt of the Initial Escrow
Amount.
(c) Escrow Agent Compensation. The Company shall pay to the Escrow
Agent such compensation for services to be performed by it under this Agreement
as the Company and the Escrow Agent may agree in writing from time to time.
The Escrow Agent shall be entitled to disburse from the Escrow Account all such
amounts due to the Escrow Agent as agreed upon by the Company and the Escrow
Agent (including the reasonable expenses described in the next succeeding
paragraph).
The Company shall reimburse the Escrow Agent upon request for all
reasonable expenses, disbursements, and advances incurred or made by the Escrow
Agent in implementing any of the provisions of this Agreement, including
compensation and the reasonable expenses and disbursements of its counsel,
except any such expense, disbursement, or advance as may arise from its gross
negligence or willful misconduct.
(d) Investment of Funds in Escrow Account. Funds deposited in the
Escrow Account shall be invested and reinvested upon the following terms and
conditions:
(i) Acceptable Investments. All funds deposited in the Escrow
Account shall be initially invested by the Escrow Agent in cash items
(including, without limitation, interest bearing deposit accounts) and
Marketable Securities in accordance with the Company's written instructions
to the Escrow Agent. Thereafter, the Escrow Agent shall invest all funds
(including proceeds of any such investments at maturity and interest earned
and dividends paid on any such investments) in the Escrow Account in cash
items or Marketable Securities designated by the Company in writing from
time to time. All Marketable Securities shall be assigned to and held in
the possession of, or, in the case of Marketable Securities maintained in
book entry form with the Federal Reserve Bank, transferred to a book entry
account in the name of, the Escrow Agent, for the benefit of the holders of
the Notes (subject to Section 3 and Section 5), with such guarantees as are
customary, except that Marketable Securities maintained in book entry form
with the Federal Reserve Bank shall be transferred to a book entry account
in the name of
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the Escrow Agent at the Federal Reserve Bank that includes only Marketable
Securities held by the Escrow Agent for its customers and segregated by
separate recordation in the books and records of the Escrow Agent, subject
to the provisions of Section 5 hereof.
(ii) Security Interest in Investments. No investment of funds
in the Escrow Account shall be made unless the Company has certified to the
Escrow Agent and the Trustee that, upon such investment, the Trustee will
have a first priority perfected security interest in the applicable
investment. A certificate as to a class of investments need not be issued
with respect to individual investments in securities in that class if the
certificate applicable to the class remains accurate with respect to such
individual investments. On the date hereof, and on each anniversary of the
Issue Date thereafter until the date upon which the balance of the
Available Funds shall have been reduced to zero, each of the Trustee and
the Escrow Agent shall receive an Opinion of Counsel (as such term is
defined in the Indenture) to the Company, dated the date hereof or thereof,
as the case may be, to the effect that the Escrow Agreement creates a
valid, perfected first priority security interest in the Escrow Account and
the collateral in favor of the Trustee. Such opinion shall meet the
requirements of Section 314(b) of the Trust Indenture Act of 1939, as
amended (the "TIA").
(iii) Interest and Dividends. All interest earned and dividends
paid on funds invested in Marketable Securities shall be deposited in the
Escrow Account as additional Collateral for the benefit of the holders of
the Notes (subject to Section 3 and Section 5) and shall be reinvested in
accordance with the terms hereof at the Company's written instruction.
(iv) Limitation on Escrow Agent's Responsibilities. The Escrow
Agent's sole responsibilities under this Section 2 shall be (A) to retain
possession of certificated Marketable Securities (except, however, that the
Escrow Agent may surrender possession to the issuer of any such Marketable
Security for the purposes of effecting assignment, crediting interest, or
reinvesting such security or reducing such security to cash) and to be the
registered or designated owner of Marketable Securities which are not
certificated, (B) to follow the Company's written instructions given in
accordance with Section 2(d)(i) hereof, (C) to invest and reinvest funds
pursuant to this Section 2(d) and (D) to use reasonable efforts to reduce
to cash such Marketable
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Securities as may be required to fund any disbursement in accordance with
Section 3 hereof. In connection with Clause (A) above, the Escrow Agent
will maintain continuous possession in the State of New York of
certificated Marketable Securities and cash included in the Collateral and
will cause uncertificated Marketable Securities to be registered in the
book-entry system of, and transferred to an account of the Escrow Agent or
a sub-agent of the Escrow Agent at, the Federal Reserve Bank of New York.
(e) Substitution of Escrow Agent. The Escrow Agent may resign by
giving no less than 30 days' prior written notice to the Company and the
Trustee. Such resignation shall take effect upon the later to occur of (i)
delivery of all funds and Marketable Securities maintained by the Escrow Agent
hereunder and copies of all books, records, plans and other documents in the
Escrow Agent's possession relating to such funds or Marketable Securities or
this Agreement to a successor escrow agent mutually approved by the Company and
the Trustee (which approvals shall not be unreasonably withheld) and (ii) the
Company, the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the holders of the Notes and the Trustee than this Agreement; and the Escrow
Agent shall thereupon be discharged of all obligations under this Agreement and
shall have no further duties, obligations or responsibilities in connection
herewith. If a successor escrow agent has not been appointed or has not
accepted such appointment within 30 days after notice of resignation is given
to the Company, the Escrow Agent may apply to a court of competent jurisdiction
for the appointment of a successor escrow agent.
(f) Escrow Account Statement. Each month, the Escrow Agent shall
deliver to the Company and the Trustee a statement signed by the Escrow Agent
in a form satisfactory to the Company and the Trustee setting forth with
reasonable particularity the balance of funds then in the Escrow Account and
the manner in which such funds are invested ("Escrow Account Statement"). The
parties hereto irrevocably instruct the Escrow Agent that on the first date
upon which the balance in the Escrow Account (including the holdings of all
Marketable Securities) is reduced to zero, the Escrow Agent shall deliver to
the Company and to the Trustee a notice that the balance in the Escrow Account
has been reduced to zero.
3. Disbursements.
(a) Payment Notice and Disbursement Request; Disbursements. The
Trustee shall, five business days prior to an interest
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Payment Date or to a date of redemption or repurchase pursuant to Section
3.07(a) or Section 4.16 of the Indenture in respect of the Notes, submit to the
Escrow Agent a completed Payment Notice and Disbursement Request substantially
in the form of Exhibit A hereto.
The Escrow Agent's disbursement pursuant to any Payment Notice and
Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3(b) hereof. Provided such Payment Notice and
Disbursement Request is not rejected by it, the Escrow Agent, within two (2)
business days following receipt of such Payment Notice and Disbursement
Request, shall disburse the funds requested in such Payment Notice and
Disbursement Request by wire or book-entry transfer of immediately available
funds to the account of the Trustee for the benefit of the holders of the
Notes. The Escrow Agent shall notify the Trustee as soon as reasonably
possible (but not later than two (2) business days from the date of receipt of
the Payment Notice and Disbursement Request) if any Payment Notice and
Disbursement Request is rejected and the reasons therefor. In the event such
rejection is based upon nonsatisfaction of the condition in Section 3(b)(A)
below, the Trustee shall thereupon resubmit the Payment Notice and Disbursement
Request with appropriate changes.
(b) Conditions Precedent to Disbursement. The Escrow Agent's
payment of any disbursement shall be made only if: (A) the Trustee shall have
submitted, in accordance with the provisions of Section 3(a) herein, a
completed Payment Notice and Disbursement Request to the Escrow Agent
substantially in the form of Exhibit A with blanks appropriately filled in and
(B) the Escrow Agent shall not have received any notice from the Trustee that
as a result of an event of Default (as defined in the Indenture) the
indebtedness represented by the Notes has been accelerated and has become due
and payable (in which event the Escrow Agent shall apply all Available Funds as
required by Section 6(b)(iii) hereof).
(c) Retired Notes. In the event a portion of the Notes has been
retired by the Company, funds representing the interest payments on the retired
Notes shall, upon the written request of the Company to the Escrow Agent and
the Trustee, be paid to the Company upon compliance with the release of
collateral provisions of the TIA and upon receipt of a notice relating thereto
from the Trustee.
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4. Escrow Agent.
Limitation of the Escrow Agent's Liability; Responsibilities of the
Escrow Agent. The Escrow Agent's responsibility and liability under this
Agreement shall be limited as follows: (i) the Escrow Agent does not represent,
warrant or guaranty to the holders of the Notes from time to time the
performance of the Company; (ii) the Escrow Agent shall have no responsibility
to the Company or the holders of the Notes or the Trustee from time to time as
a consequence of performance by the Escrow Agent hereunder, except for any
gross negligence or willful misconduct of the Escrow Agent; (iii) the Company
shall remain solely responsible for all aspects of the Company's business and
conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect, or
inform the Company or any third party of any matter referred to above.
No implied covenants or obligations shall be inferred from this
Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the
provisions of any agreement beyond the specific term hereof. Specifically and
without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or Marketable
Securities held by it hereunder, including without limitation any liability for
any delay not resulting from gross negligence or willful misconduct in such
investment, reinvestment or liquidation, or for any loss of principal or income
incident to any such delay.
The Escrow Agent shall be entitled to rely upon any judicial order or
judgment, upon any written opinion of counsel or upon any certification,
instruction, notice, or other writing delivered to it by the Company or the
Trustee in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity of service thereof. The Escrow Agent may
act in reliance upon any instrument comportinq with the provisions of this
Agreement or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
At any time the Escrow Agent may request in writing an instruction in
writing from the Company, and may at its own option include in such request the
course of action it proposes to take and the date on which it proposes to act,
regarding any matter arising in connection with its duties and obligations
hereunder;
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provided, however, that the Escrow Agent shall state in such request that it
believes in good faith that such proposed course of action is consistent with
another identified provision of this Agreement. The Escrow Agent shall not be
liable to the Company for acting without the Company's consent in accordance
with such a proposal on or after the date specified therein if (i) the
specified date is at least two business days after the Company receives the
Escrow Agent's request for instructions and its proposed course of action, and
(ii) prior to so acting, the Escrow Agent has not received the written
instructions requested from the Company.
The Escrow Agent may act pursuant to the written advice of counsel
chosen by it with respect to any matter relating to this Agreement and (subject
to Section 4(a)(ii)) shall not be liable for any action taken or omitted in
accordance with such advice.
The Escrow Agent shall not be called upon to advise any party as to
selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this Agreement with
respect to any funds or property deposited hereunder, the Escrow Agent shall be
entitled to refuse to comply with any and all claims, demands or instructions
with respect to such property or funds, and the Escrow Agent shall not be or
become liable for its failure or refusal to comply with conflicting claims,
demands or instructions. The Escrow Agent shall be entitled to refuse to act
until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to
the Escrow Agent, or the Escrow Agent shall have received security or an
indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent
harmless from and against any and all loss, liability or expense which the
Escrow Agent may incur by reason of its acting. The Escrow Agent may in
addition elect in its sole option to commence an interpleader action or seek
other judicial relief or orders as the Escrow Agent may deem necessary.
No provision of this Agreement shall require the Escrow Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder.
5. Indemnity. The Company shall indemnify, hold harmless and defend the
Escrow Agent and its directors, officers, agents,
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employees and controlling persons, from and against any and all claims,
actions, obligations, liabilities and expenses, including defense costs,
investigative fees and costs, legal fees, and claims for damages, arising from
the Escrow Agent's performance under this Agreement, except to the extent that
such liability, expense or claim is directly attributable to the gross
negligence or willful misconduct of any of the foregoing persons. In
connection with any claim, action, obligation, liability or expense for which
indemnification is sought by the Escrow Agent hereunder, the Escrow Agent shall
be entitled to recover its costs from funds available in the Escrow Account as
provided in Section 2(c), provided, however, that the Company agrees to pay
such costs if funds in the Escrow Account are insufficient. The provisions of
this Section shall survive any termination, satisfaction or discharge of this
Agreement as well as the resignation or removal of the Escrow Agent.
6. Grant of Security Interest; Instructions to Escrow Agent.
(a) The Company hereby irrevocably grants a first priority security
interest in, pledges, assigns and sets over to the Trustee all of the Company's
right, title and interest in the Escrow Account, all funds held therein and all
Marketable Securities held by (or otherwise maintained in the name of) the
Escrow Agent pursuant to Section 2 hereof, as well as all rights of the Company
under this Agreement (collectively, the "Collateral"), in order to secure all
obligations and indebtedness of the Company under the Notes and any other
obligation, now or hereafter arising, of every kind and nature, owed by the
Company under the indenture to the holders of the Notes or to the Trustee. The
Company shall take all actions necessary on its part to insure the continuance
of a first priority security interest in the Collateral in favor of the Trustee
in order to secure all such obligations and indebtedness. Each of the Trustee
and the Escrow Agent shall have received an opinion from counsel to the
Company, on the date hereof, and annually on the anniversary of the Issue Date
to the effect that the Escrow Agreement creates a valid, perfected first
priority security interest in favor of the Trustee in the Escrow Account and
the Collateral.
(b) The Company and the Trustee hereby irrevocably instruct the
Escrow Agent to, and the Escrow Agent will (i) (A) maintain sole dominion and
control over funds in the Escrow Account for the benefit of the Trustee to the
extent specifically required herein, (B) maintain, or cause its agent within
the State of New York to maintain, possession of all certified Marketable
Securities purchased hereunder that are physically possessed by the Escrow
Agent in order for the Trustee to enjoy a
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continuous perfected first priority security interest therein under the law of
the State of New York (the Company hereby agreeing that in the event any
certificated Marketable Securities are in the possession of the Company or a
third party, the Company shall use its best efforts to deliver all such
certificates to the Escrow Agent), (C) take all steps set forth in the opinion
of counsel described in paragraph (a) above to cause the Trustee to enjoy a
continuous perfected first priority security interest under the New York
Uniform Commercial Code and any applicable law of the State of New York in all
Marketable Securities purchased hereunder that are not certificated and (D)
maintain the Collateral free and clear of all liens, security interests,
safekeeping or other charges, demands and claims against the Escrow Agent of
any nature now or hereafter existing in favor of anyone other than the Trustee;
(ii) promptly notify the Trustee if the Escrow Agent receives written notice
that any person other than the Trustee has a lien or security interest upon any
portion of the Collateral (other than any claim which Escrow Agent may have
against the Escrow Account for unpaid fees and expenses) and (iii) in addition
to disbursing amounts held in escrow pursuant to any Payment Notice and
Disbursement Requests given to it by the Trustee pursuant to Section 3, upon
receipt of written notice from the Trustee of the acceleration of the maturity
of the Notes or the failure by the Company to pay principal on the Notes, and
direction from the Trustee to disburse all Available Funds to the Trustee, as
promptly as practicable, after following the procedures set forth in the fourth
paragraph of Section 4(a), disburse all funds held in the Escrow Account to the
Trustee and transfer title to all Marketable Securities held by the Escrow
Agent hereunder to the Trustee. The lien and security interest provided for by
this Section 6 shall automatically terminate and cease as to, and shall not
extend or apply to, and the Trustee shall have no security interest in, any
funds disbursed by the Escrow Agent to the Company pursuant to this Agreement.
The Escrow Agent shall act solely as the Trustee's agent in connection with the
duties under this Section 6, notwithstanding any other provision contained in
this Agreement, without any right to receive compensation from the Trustee and
without any authority to obligate the Trustee or to compromise or pledge its
security interest hereunder.
(c) Any money and Marketable Securities collected by the Trustee
pursuant to section 6(b)(iii) shall be applied as provided in the Indenture.
(d) Upon demand, the Company will execute and deliver to the Trustee
such instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest
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in the Collateral. The Trustee will take all necessary action to preserve and
protect the security interest created hereby as a lien and encumbrance upon the
Collateral.
(e) The Company hereby appoints the Trustee as its attorney-in-fact
effective upon and during the continuance of an Event of Default under the
Indenture with full power of substitution to do any act which the Company is
obligated hereto to do, and the Trustee may exercise such rights as the Company
might exercise with respect to the Collateral and to take any action in the
Company's name to protect the Trustee's security interest hereunder.
7. Termination. This Agreement shall terminate automatically ten (10)
days following disbursement of all funds remaining in the Escrow Account
(including Marketable Securities), unless sooner terminated by agreement of the
parties hereto (in accordance with the terms hereof and not in violation of the
Indenture); provided, however, that the obligations of the Company under
Section 5 (and any existing claims thereunder) shall survive termination of
this Agreement or the resignation of the Escrow Agent: and provided further,
that until such tenth day, the Company will cause this Agreement (or any
permitted successor agreement) to remain in effect and will cause there to be
an escrow agent (including any permitted successor thereto) acting hereunder
(or under any such permitted successor agreement).
8. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of
this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the parties'
intent.
(c) Assignment. This Agreement is personal to the parties hereto,
and the rights and duties of any party hereunder shall not be assignable except
with the prior written consent of
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the other parties. Notwithstanding the foregoing, this Agreement shall inure
to and be binding upon the parties and their successors and permitted assigns.
(d) Benefit. The parties hereto and their successors and permitted
assigns, but no others, shall be bound hereby and entitled to the benefits
hereof; provided, however, that the holders of the Notes and their permitted
assigns shall be entitled to the benefits hereof and to enforce this Agreement.
(e) Time. Time is of the essence of each provision of this
Agreement.
(f) Entire Agreement; Amendments. This Agreement and the indenture
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede any and all prior agreements, understandings and
commitments, whether oral or written. This Agreement may be amended only by a
writing signed by a duly authorized representative of each party.
(g) Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and
shall be deemed to have been duly given and received, regardless of when and
whether received, either: (a) on the day of hand delivery; (b) three business
days following the day sent, when sent by United States certified mail, postage
and certification fee prepaid, return receipt requested, addressed as follows;
(c) when transmitted by telecopy with verbal confirmation of receipt by the
telecopy operator; or (d) one business day following the day timely delivered
to a next-day air courier:
To Escrow Agent:
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street, 4th Floor
New York, Now York 10006
Attention: Corporate Market Services
Telecopy; (000) 000-0000
Telephone: (000) 000-0000
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To Trustee:
First Trust of New York, National
Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone: 000-0000
To the Company:
Heartland Wireless Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) Choice of Law. The existence, validity, construction, operation
and effect of any and all terms and provisions of this Agreement shall be
determined in accordance with and governed by the laws of the State of New
York. The parties to this Agreement hereby agree that jurisdiction over such
parties and over the subject matter of any action or proceeding arising under
this Agreement may be exercised by a competent Court of the State of New York,
or by a United States Court, sitting in New York City. The Company hereby
submits to the personal jurisdiction of such courts, hereby waives personal
service of process upon it and consents that any such service of process may be
made by certified or registered mail, return-receipt requested, directed to the
Company at its address last specified for notices hereunder, and service so
made shall be deemed completed five (5) days after the same shall have been so
mailed, and hereby waives the right to a trial by jury in any action or
proceeding with the Escrow Agent. All actions and proceedings brought by the
Company against the Escrow Agent relating to or arising from, directly or
indirectly, this Agreement shall be litigated only in courts within the State
of New York.
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(k) The company hereby represents and warrants that this Agreement
has been duly authorized, executed and delivered on its behalf and constitutes
the legal, valid and binding obligation of the Company. The execution,
delivery and performance of this Agreement by the Company does not violate any
applicable law or regulation to which the Company is subject and does not
require the consent of any governmental or other regulatory body to which the
Company is subject, except for such consents and approvals as have been
obtained and are in full force and effect.
(l) Each of the Escrow Agent and the Trustee hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered
on its behalf and constitutes its legal, valid and binding obligation.
16
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IN WITNESS WHEREOF, the parties have executed and delivered this
Escrow and Disbursement Agreement as of the day first above written.
ESCROW AGENT: BANKERS TRUST COMPANY
By: /s/ XXXXX XXXXX
-----------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
TRUSTEE: FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
COMPANY: HEARTLAND WIRELESS COMMUNICATIONS, INC.
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and CFO
17
EXHIBIT A TO ESCROW AND DISBURSEMENT AGREEMENT
Form of Payment, Notice and Disbursement Request
(Letterhead of the Trustee)
[Date]
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust and Agency Group
(Mr. Xxxxx Xxxxx)
Re: Disbursement Request No. ________________________
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Escrow and Disbursement Agreement, dated as of
December 20, 1996 (the "Escrow Agreement") among you (the "Escrow Agent"), the
undersigned as Trustee, and HEARTLAND WIRELESS COMMUNICATIONS, INC., a Delaware
corporation (the "Company"). Capitalized terms used herein shall have the
meaning given in the Escrow Agreement.
This letter constitutes a Payment Notice and Disbursement Request
under the Escrow Agreement.
[choose one of the following, as applicable]
[The undersigned hereby notifies you that a scheduled interest payment
in the amount of $____________ in due and payable on ___________ 15, 199_ and
requests a disbursement of funds contained in the Escrow Account in such
amount.]
[The undersigned hereby notifies you that a scheduled interest payment
in the amount of $_____________ is due and payable on _____________ 15, 199_,
which amount exceeds the amount of remaining Available Funds in the Escrow
Account. Accordingly, you are hereby requested to disburse all remaining funds
contained in the Escrow Account such that the balance in the Escrow Account is
reduced to zero.]
[The undersigned hereby notifies you that a payment of $_______ is due
and payable on ___________ __, 199_ in connection with a repurchase or
redemption of Notes, plus accrued interest, if any, pursuant to the provisions
of [Section 3.07(a)] [Section 4.16] of the Indenture and requests a
disbursement of funds contained in the Escrow Account in such amount. [The
undersigned hereby notifies you that a payment of $_____ is due and payable
18
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on _________ __, 199_ in connection with a repurchase or redemption of Notes,
plus accrued interest, if any, pursuant to the provisions of [Section 3.07(a)]
[Section 4,16] of the Indenture, which amount exceeds the amount of remaining
Available Funds in the Escrow Account. Accordingly, you are hereby requested
to disburse all remaining funds contained in the Escrow Account such that the
balance in the Escrow Account is reduced to zero.]
[The undersigned hereby notifies you that Notes equaling $____________
in aggregate principal amount have been retired and authorizes you to release
$_____________ of funds in the Escrow Account to the Company (to an account
designated by the Company in writing), which amount represents the interest
payments on such Retired Notes.]
In connection with the requested disbursement, the undersigned hereby
notifies you that:
1. The Notes have not, as a result of an Event of Default (as defined
in the Indenture), been accelerated and become due and payable.
2. All prior disbursements from the Escrow Account have been Applied.
3. [add wire instructions]
The Escrow Agent is entitled to rely on the foregoing in disbursing
funds relating to this Payment Notice and Disbursement Request.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
