EXHIBIT 99.4
July __, 2000
EXCHANGE AGENT AGREEMENT
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
UbiquiTel Operating Company (the "Company") proposes to make an offer
(the "Exchange Offer") to exchange all of its outstanding 14.0% Senior
Subordinated Discount Notes due 2004 (the "Outstanding Notes") for its
registered 14.0% Senior Subordinated Discount Notes due 2004 (the "Registered
Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated July __, 2000 (the
"Prospectus"), proposed to be distributed to all record holders of the
Outstanding Notes. The Outstanding Notes and the Registered Notes are
collectively referred to herein as the "Notes".
The Company hereby appoints American Stock Transfer & Trust Company
to act as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to American Stock
Transfer & Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about July __, 2000. The Letter of Transmittal (in substantially the form
attached hereto as Exhibit "A") accompanying the Prospectus (or in the case of
book-entry securities, the Automated Tender Offer Program system) is to be
used by the holders of the Outstanding Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for
Outstanding Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_______, 2000 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.
The Company expressly reserves the right to terminate the Exchange
Offer, and to refuse to accept any Outstanding Notes and return any
Outstanding Notes theretofore accepted for exchange, upon the occurrence of
any of the conditions of the Exchange
Offer specified in the Prospectus under the caption "The Exchange Offer --
Conditions." The Company will give oral (confirmed in writing) or written
notice of any termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth herein; provided, however, that
in no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish an account with respect to the Outstanding
Notes 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
Outstanding Notes by causing the Book-Entry Transfer Facility to transfer such
Outstanding Notes 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
certificates for Outstanding Notes (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 Outstanding Notes to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein and (ii) the Outstanding Notes have otherwise been properly
tendered. In each case where the Letter of Transmittal or any other document
has been improperly completed or executed or any of the certificates for
Outstanding Notes 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.
4. With the approval of the President or Senior Vice President of
the Company (such approval, if given orally, to be confirmed in writing) or
any other party designated by such an officer in writing, you are authorized
to waive any irregularities in connection with any tender of Outstanding Notes
pursuant to the Exchange Offer.
5. Tenders of Outstanding Notes 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 Outstanding Notes 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, Outstanding Notes which the President or Senior Vice President of the
Company (or any other party designated by such
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an officer in writing) shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
confirmed in writing).
6. You shall advise the Company with respect to any Outstanding
Notes received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Outstanding Notes.
7. You shall accept tenders: (a) in cases where the Outstanding
Notes 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 Outstanding Notes provided that
customary transfer requirements, including any applicable transfer taxes, are
fulfilled. You shall accept partial tenders of Outstanding Notes where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Outstanding Notes to the trustee for split-up and return any
untendered Outstanding Notes 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, to
be confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Outstanding Notes properly tendered and you, on behalf of the
Company, will exchange such Outstanding Notes for Registered Notes and cause
such Outstanding Notes to be cancelled. Delivery of Registered Notes will be
made on behalf of the Company by you in minimum denominations of $1,000
principal amount and integral multiples of $1,000 in excess thereof for each
$1,000 principal amount of Outstanding Notes and $1,000 integral multiples in
excess thereof tendered promptly after notice (such notice if given orally, to
be confirmed in writing) of acceptance of said Outstanding Notes by the
Company; provided, however, that in all cases, Outstanding Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Outstanding Notes (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 documents. You shall
issue Registered Notes in minimum denominations of $1,000 principal amount and
$1,000 integral multiples in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Outstanding Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company shall not be required to exchange any Outstanding
Notes tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of
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any decision by the Company not to exchange any Outstanding Notes tendered
shall be given (and 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 Outstanding Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Outstanding Notes (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 certificates for reissued Outstanding Notes, unaccepted
Outstanding Notes or for Registered Notes shall be forwarded by first-class
mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you: (a) shall have no duties or
obligations other than those specifically set forth herein or as may be
subsequently agreed to in writing by you and the Company; (b) will be regarded
as making no representations and having no responsibilities as to the
validity, sufficiency, value or genuineness of any of the certificates or the
Outstanding Notes represented thereby deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no representation as
to the validity, value or genuineness of the Exchange Offer; (c) may
reasonably rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram 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 believe to be genuine or to
have been signed or represented by a proper person or persons; (e) may consult
with your counsel with respect to any questions relating to your duties and
responsibilities 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 to be taken by you hereunder in good faith and in accordance with
the advice or opinion of such counsel; and (f) shall not advise any person
tendering Outstanding Notes 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 Outstanding Notes.
15. You shall take such 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 Prospectus, Letter of Transmittal and
the Notice of Guaranteed Delivery (in substantially the form attached hereto
as Exhibit "B") or such other forms as may be approved from time to time by
the Company, 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 the Company,
Attention: _____________.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the __________ of the Company and
such other person or persons as it may request, daily (and more frequently
during the week immediately preceding the Expiration Date and if otherwise
requested) up to and including the Expiration Date, as to the number of
Outstanding Notes 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 upon oral request made
from time to time prior to the Expiration Date of such other information as it
or he or she 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 Outstanding Notes tendered and the aggregate principal amount of
Outstanding Notes accepted, and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
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 any affiliate of yours or for compensation owed
to you hereunder or to any affiliate of yours by the Company or any of its
subsidiaries or affiliates pursuant to any arrangement.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
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20. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal and further acknowledge that you have examined each of them.
Any inconsistency between this Agreement, on the one hand, and the Prospectus
and the Letter of Transmittal (as they may be amended from time to time), on
the other hand, shall be resolved in favor of the latter two documents, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent, which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising
out of or in connection with any act, omission, delay or refusal made by you
in 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 Outstanding Notes 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 Outstanding Notes; 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
gross negligence or willful misconduct. In no case shall the Company be liable
under this indemnity with respect to any claim against you in your capacity as
Exchange Agent unless the Company shall be notified by you, by letter or by
facsimile confirmed by letter, of the written assertion of a claim against you
or of any other action commenced against you, promptly after you shall have
received any such written assertion or notice of commencement of action. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or other action, and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company shall retain counsel
satisfactory to you to defend such suit, and so long as such counsel's
representation of you would not present it with a conflict of interest.
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 file any appropriate reports 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. 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
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obligations created hereby shall be binding upon, the successors and assigns
of each of the parties hereto.
24. 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.
25. 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.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled 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.
27. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to
it, at its address or telecopy number set forth below:
If to the Company:
UbiquiTel Operating Company
0 Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: ________________
If to the Exchange Agent:
American Stock Transfer & Trust Company
________________________
________________________
Facsimile: _________________
Attention: Exchange Department
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Company any certificates for Notes, funds or property then held by you
as Exchange Agent under this Agreement.
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29. 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.
UBIQUITEL OPERATING
COMPANY
By:________________________
Name:
Title:
Accepted as of the date first above written:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Exchange Agent
By:_____________________
Name:
Title:
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SCHEDULE I
FEES
9
EXHIBIT A
FORM OF LETTER OF TRANSMITTAL
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EXHIBIT B
FORM OF NOTICE OF GUARANTEED DELIVERY
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