BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
December 23, 1996
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
Heartland Wireless Communications, Inc., a Delaware corporation (the
"Company"), is offering to exchange (the "Exchange Offer") its 13% Series D
Senior Notes due 2003 (the "New Notes") for an equal principal amount of its 13%
Series C Senior Notes due 2003 (the "Old Notes" and, together with the New
Notes, the "Notes"), pursuant to a prospectus (the "Prospectus") included in the
Company's Registration Statement on Form S-4 (File No. 333-12577), as amended
(the "Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC"). The term "Expiration Date" shall mean 5:00 p.m., New
York City time, on January 22, 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration Date" shall mean
the latest date and time to which the Exchange Offer is extended. Upon
execution of this Agreement, Bankers Trust Company will act as the Exchange
Agent for the Exchange Offer (the "Exchange Agent"). A copy of the Prospectus
is attached hereto as EXHIBIT A. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter
of Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter to
clients (collectively, the "Tender Documents") to be used by Holders of Old
Notes to surrender Old Notes in order to receive New Notes pursuant to the
Exchange Offer are attached hereto as EXHIBIT B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you are
to act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the Company
that the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof to any persons who become Holders
prior to the Expiration Date and to any persons as may from time to time be
requested by the Company. All mailings pursuant to this Section 1 shall be by
first class mail, postage prepaid, unless otherwise specified by the Company.
You shall also accept and comply with telephone requests for information
relating to the Exchange Offer provided that such information shall relate only
to the procedures for tendering Old Notes in (or withdrawing tenders of Old
Notes from) the Exchange Offer. All other requests for information relating to
the Exchange Offer shall be directed to the Company, Attention: J. Xxxxxx
Xxxxxxxxx, Vice President and General Counsel, 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxx, Xxxxx 00000, telephone (000) 000-0000.
2. You are to examine the Letters of Transmittal and the Old Notes
and other documents delivered or mailed to you, by or for the Holders, prior to
the Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii)the Old Notes are in proper form for transfer and (iii) all other
documents submitted to you are in proper form. In each case where a Letter of
Transmittal or other document has been improperly executed or completed or, for
any other reason, is not in proper form, or some other irregularity exists, you
are authorized to endeavor to take such action as you consider appropriate to
notify the tendering Holder of such irregularity and as to the appropriate means
of resolving the same. Determination of questions as to the proper completion
or execution of the Letters of Transmittal, or as to the proper form for
transfer of the Old Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Old Notes and other documents in
connection with the Exchange Offer, shall be made by the officers of, or counsel
for, the Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall be
final and binding.
3. At the written request of the Company or its counsel, X'Xxxxxxxx
Graev & Karabell, LLP, you shall notify tendering Holders of Old Notes in the
event of any extension, termination or amendment of the Exchange Offer. In the
event of any such termination, you will return all tendered Old Notes to the
persons entitled thereto, at the request and expense of the Company or its
counsel, X'Xxxxxxxx Graev & Karabell, LLP.
4. Tender of the Old Notes may be made only as set forth in the
Letter of Transmittal. Notwithstanding the foregoing, tenders which the Company
shall approve in writing as having been properly tendered shall be considered to
be properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for six years. New Notes
are to be issued in exchange for Old Notes pursuant to the Exchange Offer only
(i)
-2-
against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in
Instruction 5 of the Letter of Transmittal, within three New York Stock Exchange
trading days after the Expiration Date of the Exchange Offer, together with
executed Letters of Transmittal and any other documents required by the Exchange
Offer or (ii) in the event that the Holder is a participant in the Depository
Trust Company ("DTC") system, by the utilization of DTC's Automated Tender Offer
Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Old Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the Effective Date of the Exchange Offer in accordance
with SEC Regulation 240.17 Ad. Any financial institution that is a participant
in the Book Entry Transfer Facility system may, until the Expiration Date, make
book-entry delivery of the Shares by causing the Book Entry Facility to transfer
such Notes into your account in accordance with the procedure for such transfer
established by the Book Entry Transfer Facility. In every case, however, a
Letter of Transmittal (or a manually executed facsimile thereof) or an Agent's
Message, properly completed and duly executed, with any required signature
guarantees and any other required documents must be transmitted to and received
by you prior to the Expiration Date or the guaranteed delivery procedures
described in the Offer must be complied with.
5. Upon the oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing, to (i) J. Xxxxxx
Xxxxxxxxx, Vice President and General Counsel, Heartland Wireless
Communications, Inc., 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000,
telephone (000) 000-0000, and (ii) Xxxxx X. Xxxxx, Esq., X'Xxxxxxxx Graev &
Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone (212)
000-0000, or such other persons as the Company may reasonably request, the
aggregate number and principal amount of Old Notes tendered to you and the
number and principal amount of Old Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonably request.
6. Upon the terms and subject to the conditions of the Exchange
Offer, delivery of New Notes to be issued in exchange for accepted Old Notes
will be made by you promptly after acceptance of the tendered Old Notes. You
will hold all items which are deposited for tender with you after 5:00 p.m., New
York City time, on the Expiration Date pending further instructions from an
officer of the Company.
-3-
7. If any Holder shall report to you that his or her failure to
surrender Old Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by the Company, a bond
of indemnity in an amount and evidenced by such certificate or certificates of a
surety, as may be satisfactory to you and the Company, and (ii) to execute and
deliver an agreement to indemnify the Company and you in such form as is
acceptable to you and the Company. The obligees to be named in each such
indemnity bond shall include the Company and you. You shall report to the
Company the names of all Holders who claim that their Old Notes have been lost
or destroyed and the principal amount of such Old Notes.
8. As soon as practicable after the Expiration Date, you shall mail
or deliver to a Holder the New Notes that such Holder may be entitled to receive
and you shall arrange for cancellation of the Old Notes submitted to you or
returned by DTC in connection with ATOP. Such Old Notes shall be forwarded to
First Trust of New York, National Association, as trustee (the "Trustee"), under
the Indenture dated as of March 28, 1996, as supplemented from time to time,
governing the Notes, for cancellation and retirement as you are instructed by
the Company (or a representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as EXHIBIT
C. The Company also will reimburse you for your reasonable out-of-pocket
expenses (including, but not limited to, reasonable attorneys' fees not
previously paid to you as set forth in EXHIBIT C) in connection with your
services promptly after submission to the Company of itemized statements.
10. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other person or
to engage or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder or any New
Notes, any Tender Documents or other documents prepared by the Company
in connection with the Exchange Offer or any
-4-
signatures or endorsements other than your own, and will not be
required to make and will not make any representations as to the
validity, sufficiency, value or genuineness of the Exchange Offer or
any other disclosure materials in connection therewith; PROVIDED,
HOWEVER, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you shall have been furnished with an indemnity reasonably
satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice 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 advice of such counsel;
(f) shall not at any time advise any person as to the wisdom of
the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred in
connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement; PROVIDED, HOWEVER, such Indemnified
Party shall use its best effort to notify the Company by letter, or by cable,
telex or telecopier confirmed by letter, of the written assertion of a claim
against such Indemnified Party, or of any action commenced
-5-
against such Indemnified Party, promptly after but in any event within 10 days
of the date such Indemnified Party shall have received any such written
assertion of a claim or shall have been served with a summons, or other legal
process, giving information as to the nature and basis of the claim; PROVIDED,
HOWEVER, that failure to so notify the Company shall not relieve the Company of
any liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the Company.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
the Company assumes such defense, the Company shall not be liable for any fees
and expenses thereafter incurred by such Indemnified Party, except for any
reasonable fees and expenses of such Indemnified Party incurred as a result of
the need to have separate representation because of a conflict of interest
between such Indemnified Party and the Company. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall
be construed and enforced in accordance with the laws of the State of New York
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement and the Tender Documents, as they may from
time to time be supplemented or amended, shall be resolved in favor of the
latter, except with
-6-
respect to the duties, liabilities and indemnification of you as Exchange Agent.
16. This Agreement may be executed in one 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.
17. 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.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Notes or New Notes, funds or property then held
by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to Company: Heartland Wireless Communications, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: J. Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and a copy to: X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, New York 10006
Attn: Mr. Xxxxx Xxxxx or Xx. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-7-
and a copy to: Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purpose.
20. This Letter Agreement and all of the obligations hereunder shall
be assumed by any and all successors and assigns of the Company.
-8-
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
HEARTLAND WIRELESS COMMUNICATIONS, INC.
By:
-------------------------------------
Title:
Agreed to this 23rd day of December, 1996
BANKERS TRUST COMPANY
By:
---------------------------
Title:
-9-
EXHIBIT A
PROSPECTUS
EXHIBIT B
TENDER DOCUMENTS
EXHIBIT C
SCHEDULE OF FEES
Covers review of the Letter of Transmittal, DTC ATOP Voluntary
Offering Instruction, the Exchange Agent Agreement and other related
documentation, if any, as required by the Exchange Offer; set-up of records and
accounts; distribution of materials; all operational and administrative charges
and time in connection with the review, receipt and processing of Letters of
Transmittal/VOI, Processing Delivery of Guarantees, Legal Items, Withdrawals,
record keeping, and answering securityholders' inquiries pertaining to the
Exchange Offer.
FLAT FEE: $5,000.00
---------
---------
NOTE
These fees are also subject to change should circumstances warrant.
Reimbursement for all out-of-pocket expenses, disbursements (including
postage, telex, fax, photocopying and advertising costs), and fees of
counsel (including their disbursements and expenses) incurred in the
performance of our duties will be added to the billed fees. Once
appointed, if the deal should fail to close for reasons beyond our control,
we reserve the right to charge a fee not to exceed the amount of our
acceptance fee and we will require reimbursement in full for our legal fees
and any out-of-pocket expenses related to the deal.
Fees for any services not specifically covered in this or any other
applicable schedule will be based on the appraisal of services rendered
