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Exhibit 99.4
December __, 2000
FORM OF EXCHANGE AGENT AGREEMENT
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BNY Midwest Trust Company
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Ladies and Gentlemen:
iPCS, Inc. a Delaware corporation (the "Company") proposes to make an
offer (the "Exchange Offer") to exchange all of its outstanding 14% Senior
Discount Notes (the "Outstanding Notes") for its Registered 14% Senior Discount
Notes (the "Registered Notes"). The terms and conditions of the Exchange Offer
are set forth in a prospectus (the "Prospectus") included in the Company's
registration statement on Form S-4 (File No. 333-47688), as it may be amended
from time to time (the Registration Statement"), filed with the Securities and
Exchange Commission, and 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." Capitalized terms used herein
and not defined shall have the respective meanings ascribed to them in the
Prospectus or the accompanying Letter of Transmittal.
The Company hereby appoints BNY Midwest Trust Company to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to BNY Midwest Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about _____________. The Letter of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, either the Letter of Transmittal or the
Automated Tender Offer Program ("ATOP") 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.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_________ 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
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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
next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to
amend or terminate the Exchange Offer, and not to accept for exchange any
Outstanding Notes not theretofore accepted for exchange. The Company will give
oral (confirmed in writing) or written notice of any amendment, 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," in the Letter of Transmittal accompanying the Prospectus or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Outstanding
Notes at The Depository Trust Company ("DTC") for purposes of the Exchange Offer
within two business days after the date of the Prospectus, and any financial
institution that is a participant in DTC's systems may, until the Expiration
Date, make book-entry delivery of the Outstanding Notes by causing DTC to
transfer such Outstanding Notes into your account in accordance with DTC's
procedures for such transfer. In every case, however, a Letter of Transmittal
(or 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 Exchange
Offer must be complied with.
3. You are to examine each of the Letters of Transmittal and
certificates for Outstanding Notes (and confirmation of book-entry transfers of
Outstanding Notes into your account at DTC) 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, certificates and any such other documents are
duly executed and properly completed in accordance with instructions set forth
therein and that such book-entry confirmations are in due and proper
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form and contain the information required to be set forth therein; (ii) the
Outstanding Notes have otherwise been properly tendered; and (iii) holders have
provided their Tax Identification Number or required certification. In each case
where the Letter of Transmittal or any other document has been improperly
completed or executed, or where book-entry confirmations are not in due and
proper form or omit certain information, 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 any Senior Vice President of
the Company (such approval, if given orally, to be promptly confirmed in
writing) or any other person 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. At the written request of the Company or its counsel, you shall
notify at the expense of the Company tendering holders of Outstanding 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 Outstanding
Notes to the persons entitled thereto, at the request and expense of the
Company.
6. 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 Section 6, Outstanding Notes
which the President or any Senior Vice President of the Company or any other
person designated by any such person shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing). Registered Notes are to be issued in
exchange for Outstanding Notes pursuant to the Exchange Offer only (i) 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 1 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
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in DTC's system, by the utilization of DTC's ATOP and any evidence required by
the Exchange Offer.
7. 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.
8. 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 those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Notes when so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Outstanding Notes to the security registrar 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.
9. 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 canceled. Delivery of Registered Notes will be made on behalf of
the Company by you at the rate of $1,000 principal amount of Registered Notes
for each $1,000 principal amount of Outstanding Notes 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
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your account at DTC), a properly completed and, except as described in the
section of the Prospectus captioned "The Exchange Offer - Procedures for
Tendering," duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other required documents. Unless otherwise
instructed by the Company, you shall issue Registered Notes only in
denominations of $1,000 or any integral multiple thereof.
10. 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
in accordance with the terms of the Exchange Offer.
11. 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 any decision by the Company not to exchange any Outstanding Notes
tendered shall be given (and confirmed in writing) by the Company to you.
12. 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 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 (or effected such book-entry
transfer).
13. All certificates for reissued Outstanding Notes, unaccepted
Outstanding Notes or for Registered Notes (other than those effected by book-
entry transfer) shall be forwarded by first-class mail or appropriate book-entry
transfer.
14. As soon as practicable after the Expiration Date, you shall
arrange for cancellation of the Outstanding Notes submitted to you or returned
by DTC in connection with ATOP. Such Outstanding Notes shall be canceled and
retired by you in accordance with your customary procedures.
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15. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, commercial bank, trust
company or other nominee or to engage or use any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) shall not liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad
faith, and in no event shall you be liable to a securityholder, the Company
or any third party for special, indirect or consequential damages, or lost
profits, arising in connection with this Agreement.
(b) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or
herein or as may be subsequently agreed to in writing by you and the
Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates for the Outstanding Notes 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;
(d) 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;
(e) 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;
(f) may conclusively 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;
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(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from the Chief Executive Officer or Chief
Financial Officer of the Company;
(h) may consult with your counsel of your selection 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
(i) shall not advise any person tendering Outstanding Notes
pursuant to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of the Outstanding Notes or as to the market
value, decline or appreciation in market value of any Outstanding Notes
that may or may not occur as a result of the Exchange Offer or as to the
market value of the Registered Notes; provided, however, that in no way
will your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
17. 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
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) 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.
18. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Stebbins B. Chandor, the Chief
Financial Officer of the Company (telephone number (847) 944-2900, facsimile
number (847) 517-1429), and such other person or persons as the Company 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 and aggregate principal amount of Outstanding Notes which
have been duly tendered pursuant to the Exchange Offer and the items received by
you pursuant to the Exchange Offer and this Agreement, separately
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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, including the identity of the
holders of the Outstanding Notes who have not tendered such Outstanding Notes as
of the date such request was made. You shall prepare a final list of all persons
whose tenders were accepted, the number and aggregate principal amount of
Outstanding Notes tendered, the number and aggregate principal amount of
Outstanding Notes accepted and the identity of any participating broker-dealers
and the number and aggregate principal amount of Registered Notes delivered to
each, and deliver said list to the Company.
19. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery received by you 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, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters
of Transmittal and other surplus materials, upon notification to the Chief
Executive Officer or Chief Financial Officer of the Company, in accordance with
your customary procedures.
20. 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, credit
or other agreement with you or for compensation owed to you hereunder or any
other agreement.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on the Schedule attached hereto. The
provisions of this section shall survive the termination of this Agreement.
22. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
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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.
23. 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 reasonable 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
anything in this Agreement to the contrary notwithstanding, 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 unless the Company shall be notified by you, by
letter or cable or facsimile, which is 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 may assume the defense of any pending or
threatened action against you in respect of which indemnification may be sought
hereunder, in which case the Company shall not thereafter be responsible for the
subsequently incurred fees and disbursements of legal counsel for you under this
Section 23 so long as the Company shall retain counsel reasonably satisfactory
to you to defend such suit; provided, however, that the Company shall not be
entitled to assume the defense of any such action if the named parties to such
action include both you and the Company and representation of both parties by
the same legal counsel would, in the written opinion of your counsel, be
inappropriate due to actual or potential conflicting interests between you and
the Company. You understand and agree that the Company shall not be liable
under this Section 23 for the fees and expenses of more than one legal counsel
for you.
24. 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
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file any appropriate reports with the Internal Revenue Service. The Company
understands that you are required, in certain instances, to deduct thirty-one
percent (31%) with respect to interest paid on the Registered Notes and proceeds
from the sale, exchange, redemption or retirement of the Registered Notes from
holders who have not supplied their correct Taxpayer Identification Numbers or
required certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Outstanding Notes and, upon receipt of a
written approval from the Company, 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 Outstanding Notes, 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
Outstanding Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
26. 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.
27. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and its successors and assigns, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Without limitation of the foregoing, the parties
hereto expressly agree that no holder of Outstanding Notes or Registered Notes
shall have any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
28. 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.
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29. 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.
30. 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.
31. 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:
iPCS, Inc.
1900 East Golf Road, Suite 900
Schaumburg, Illinois 60173
Telephone: (847) 944-2900
Facsimile: (847) 517-1429
Attention: Timothy M. Yager
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 782-0600
Facsimile: (312) 701-7711
Attention: Paul W. Theiss
Robert J. Wild
If to the Exchange Agent:
BNY Midwest Trust Company
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2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Facsimile: (312) 827-8542
Attention: Corporate Trust Administration
32. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 19, 21, 23 and 25 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.
33. 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.
iPCS, INC.
By:___________________________
Name: Timothy M. Yager
Title: President and Chief
Executive Officer
Accepted as of the date
first above written:
BNY MIDWEST TRUST COMPANY, as Exchange Agent
By:_______________________
Name:
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Title:
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SCHEDULE
COMPENSATION OF EXCHANGE AGENT:
[$5,000] PLUS $500 PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING WITHOUT
LIMITATION, LEGAL FEES AND EXPENSES.
