EXHIBIT 10.30
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "FIRST SUPPLEMENTAL INDENTURE"), dated
as of November 12, 2001 among UbiquiTel Operating Company (or its permitted
successor), a Delaware corporation (the "COMPANY"), UVMS I, Inc., UVMS II, Inc.,
UVMS III, Inc., UVMS IV, Inc., UVMS V, Inc., UVMS VI, Inc., each a California
corporation and a wholly-owned subsidiary of the Company (collectively, the
"UVMS SUBS"), Central Valley Cellular, Inc., a California corporation and an
indirect wholly-owned subsidiary of the Company ("CVC"), VIA Wireless, LLC, a
California limited liability company and an indirect wholly-owned subsidiary of
the Company ("VIA"), VIA Building, LLC, a Nevada limited liability company and
an indirect wholly-owned subsidiary of the Company ("VIA BUILDING"), and
American Stock Transfer & Trust Company, as trustee under the indenture referred
to below (the "TRUSTEE"). The UVMS Subs, CVC, VIA and VIA Building are each
individually referred to herein as an "ADDITIONAL GUARANTOR" and are referred to
collectively as the "ADDITIONAL GUARANTORS."
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of April 11, 2000 providing for the
issuance of an aggregate principal amount of up to $300 million of 14% Senior
Subordinated Discount Notes due 2010 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Additional Guarantors shall execute and deliver to the Trustee a supplemental
indenture pursuant to which each Additional Guarantor shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE");
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture; and
WHEREAS, the Indenture may be supplemented pursuant to Section 9.01 thereof
without the consent of the Holders of the Notes for the purpose of allowing each
Additional Guarantor to become a Guarantor of the obligations of the Company and
those of each other Guarantor under the Indenture and the Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, each Additional Guarantor and the Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized Terms used herein without definition
shall have the meanings assigned to them in the Indenture.
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2. AGREEMENT TO GUARANTEE. Subject to and to the extent of Article 12 of
the Indenture, each Additional Guarantor hereby agrees as follows:
a. Along with all Guarantors, to jointly and severally Guarantee to
each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or
the Obligations of the Company hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of to the extent and interest and Liquidation
Damages, if any, on the Notes to the extent lawful, and all
other Obligations of the Company to the Holders or the
Trustee hereunder or under the Indenture shall be promptly
paid in full or performed, all in accordance with the terms
hereof and under the Indenture; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other Obligations, that same shall
be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
b. The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
c. The following is hereby waived: diligence presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever.
d. This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
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e. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
f. The Guarantors shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations
guaranteed hereby.
g. As between the Guarantors, on the one hand, the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of
the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the
Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
h. The Guarantors shall have the right to seek contribution from a
non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Note Guarantee.
i. Notwithstanding the foregoing, in the event that this Note
Guarantee would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of each Additional Guarantor under
this First Supplemental Indenture and its respective Note
Guarantee shall be reduced to the maximum amount permissible
under such fraudulent conveyance or similar law.
j. Notwithstanding anything herein to the contrary, all obligations
of the Additional Guarantors hereunder shall be subordinated to
the prior payment of Senior Indebtedness to the same extent that
the Notes are subordinated pursuant to Article 11 of the
Indenture.
3. EXECUTION AND DELIVERY. Each Additional Guarantor agrees that the
Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
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4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the
Additional Guarantors, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Notes, any Note
Guarantees, the Indenture or this First Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and
it is the view of the SEC that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. RATIFICATION. This First Supplemental Indenture is executed pursuant
to Section 9.01 of the Indenture, and the terms and conditions hereof
shall be and shall be deemed to be part of the terms and conditions of
the Indenture for any and all purposes. The Indenture, as supplemented
by this First Supplemental Indenture, is in all respects hereby
adopted, ratified and confirmed by the parties hereto.
9. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
First Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the
Additional Guarantors and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
THE COMPANY
UbiquiTel Operating Company
By: /s/
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Name: Xxxxxx X. Xxxxxx
Title: President and CEO
ADDITIONAL GUARANTORS:
UVMS I, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
UVMS II, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
UVMS III, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
UVMS IV, Inc.
By: /s/
---------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
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UVMS V, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
UVMS VI, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
Central Valley Cellular, Inc.
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
VIA Wireless, LLC
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
VIA Building, LLC
By: /s/
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
AMERICAN STOCK TRANSFER &
TRUST COMPANY, AS TRUSTEE
By: /s/
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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