Exhibit 10.29
EXECUTION COPY
REVOLVING CREDIT NOTE
February 22, 2001
FOR VALUE RECEIVED, and subject to the provisions of paragraph 1 and 2
below, VIA Wireless, LLC, a California limited liability company (the
"Borrower"), hereby promises to pay to UbiquiTel Operating Company, a Delaware
corporation (the "Lender"), the Advances under the Credit Agreement (as defined
hereunder) made by the Lender to the Borrower, plus the sum of all accrued but
unpaid interest on such Advances at the rate set forth below, in accordance with
the terms and conditions of the Revolving Credit and Term Loan Agreement by and
between the Borrower and the Lender of even date herewith (the "Credit
Agreement"), in lawful money of the United States of America in immediately
available funds, at its office located at Xxx Xxxx Xxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 19428. The amounts owing hereunder represent the
aggregate unpaid principal amount of all Advances (as defined in the Credit
Agreement) up to a maximum principal amount of TWENTY-FIVE MILLION DOLLARS
($25,000,000), plus accrued but unpaid interest thereon, or so much thereof as
may be advanced or readvanced and remains unpaid. Interest shall accrue on the
aggregate unpaid principal amount of the Advances at the rate per annum of
fourteen percent (14%). Interest shall be based on a three hundred sixty-five
(365) day year, counting the actual number of days elapsed.
This Note is the "Revolving Credit Note" described in the Credit
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions which the Advances evidenced hereby are made. All
capitalized terms used in this Note and not otherwise defined herein shall have
the meaning given to such terms in the Credit Agreement. The fact that the
balance hereunder may be reduced to zero from time to time pursuant to the
Credit Agreement will not affect the continuing validity of this Note or the
Credit Agreement; the balance may be increased to the maximum principal amount
as stated on the face of this Note prior to the Revolving Credit Loan
Termination Date. Reference is also made to that certain Merger Agreement among
the Borrower, the Lender and the other parties named therein.
All Borrower's obligations to the Lender hereunder shall be repayable
on the Revolving Credit Loan Termination Date or the Term Loan Termination Date
as provided below:
1. If the Revolving Credit Loan Termination Date arises in connection
with the Closing (as defined in the Merger Agreement), the Borrower's
obligations to the Lender hereunder shall be forgiven and this Note shall be
cancelled in its entirety without any payment of principal or interest
thereon.
2. Upon termination of the Merger Agreement for any reason other than the
Closing thereunder, the Note shall be automatically converted into the Term Note
in the principal amount equal to the amount of all outstanding Advances plus all
accrued and unpaid interest thereon, and unless an Event of Default under
Section 7.01 of the Credit Agreement or a termination of the Management
Agreement pursuant to Section 6.2 thereof shall have occurred, the Borrower's
obligations shall be due and payable on the Term Loan Termination Date;
provided, however, that the aggregate outstanding amount of Advances in excess
of $25,000,000 shall not be converted as of the Revolving Credit Loan
Termination Date but shall be due and payable at such conversion. If an Event of
Default under Section 7.01 of the Credit Agreement or a termination of the
Management Agreement pursuant to Section 6.2 thereof shall have occurred, the
Term Loan shall automatically accelerate and immediately become due and payable.
The Borrower's obligations under this Note shall be absolute,
irrevocable and unconditional and shall remain in full force and effect until
the outstanding principal of and interest on this Note and all
other obligations or amounts due hereunder and under the Credit Agreement
shall have been indefeasibly paid in full in cash in accordance with the
terms thereof and this Note shall have been canceled.
The Lender is hereby authorized by the Borrower to endorse on this Note
each Advance made by the Lender under this Note, the balance due at any time,
and the amount of each payment or prepayment of principal of each such Advance
received by the Lender; and such record, absent manifest error, shall be binding
on the Borrower; it being understood, however, that failure to make any such
endorsement (or any error in notation) shall not affect the obligations of the
Borrower with respect to the Advances made hereunder, and payments of principal
by the Borrower shall be credited to Borrower notwithstanding the failure to
make a notation (or any errors in notation) thereof on such books and records.
This Note is issued pursuant to the Credit Agreement, which shall
govern the rights and obligations of the Borrower with respect to all
obligations hereunder. If an Event of Default under the Credit Agreement shall
occur and be continuing, the principal of and the accrued interest on this Note
may be declared to be due and payable in the manner and with the effect provided
in the Credit Agreement, or if the Management Agreement is terminated pursuant
to Section 6.2 thereof the principal of and the accrued interest on this Note
shall automatically become due and payable, and the Lender shall have all of the
rights, powers, and remedies available under the terms of this Note, the Credit
Agreement and all applicable laws. The Borrower hereby waives presentment,
demand, protest or notice of any kind in connection with this Note. The Borrower
promises to pay all costs and expenses of collection of this Note and to pay all
reasonable attorneys' fees incurred in such collection, whether or not there is
a suit or action, or in any suit or action to collect this Note or in any appeal
thereof. No delay by the Lender in exercising any power or right hereunder shall
operate as a waiver of any power or right. Time is of the essence as to all
obligations hereunder.
The Borrower acknowledges and agrees that this Note shall be governed
by the laws of the State of Delaware, excluding conflicts of laws principles,
even though for the convenience and at the request of the Borrower, this Note
may be executed elsewhere.
THE BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN FRESNO, CALIFORNIA IN ANY ACTION, SUIT, OR PROCEEDING
OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS NOTE; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON THE LENDER CANNOT AVAIL ITSELF OF THE COURTS OF
CALIFORNIA, THE BORROWER ACCEPTS JURISDICTION OF THE COURTS AND VENUE IN
PHILADELPHIA, PENNSYLVANIA. THE BORROWER HEREBY WAIVES ITS RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE OR
THE CREDIT AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. THE BORROWER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS
WAIVER AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the undersigned has executed this
REVOLVING CREDIT NOTE as of the date first set forth above.
VIA WIRELESS, LLC
By:
--------------------------------
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT NOTE]
SCHEDULE OF BORROWING
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DATE: ADVANCE PAYMENT BALANCE DUE:
DISBURSED BY RECEIVED FROM
LENDER: BORROWER:
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