ESCROW AGREEMENT
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EXHIBIT 10.33
THIS ESCROW AGREEMENT (this "Agreement") is entered into as of February 14, 2003 by and among UbiquiTel Operating Company, a Delaware corporation (the "Company"), the parties identified on the execution pages hereof as the "Purchasers" and Xxxxxxxxx Xxxxxxx LLP, a limited liability partnership, as escrow agent (the "Escrow Agent"), pursuant to Section 1.3 of a Note Purchase Agreement amongst, inter alia, the same parties dated of even date herewith ("Purchase Agreement"). All capitalized terms set forth herein and not otherwise defined shall have the meanings as defined in the Purchase Agreement.
The Purchasers have agreed, severally but not jointly, to purchase the Series B Notes in the principal amount of $15,000,000 for an aggregate purchase price of $11,250,000, and Warrants to purchase 11,250,000 Shares. Schedule I sets forth the Purchase Price for each Purchaser. Each Purchaser has agreed, severally and not jointly, to deposit its Purchase Price in escrow, subject to the terms of this Agreement.
NOW, THEREFORE, the parties agree as follows:
- 1.
- Appointment of Escrow Agent. The Purchasers, and the Company appoint and designate the Escrow Agent to receive, hold and
distribute, as Escrow Agent, the Purchase Price deposited by the Purchasers, and the Escrow Agent accepts such appointment and designation.
- 2.
- Deposits into Escrow.
- (a)
- Immediately
following the execution of this Agreement and the Purchase Agreement by all Purchasers, as notified to the Purchasers by the Company, each Purchaser, severally and not
jointly, shall deposit an amount equal to its Purchase Price with the Escrow Agent, pursuant to the wire transfer instructions set forth on Exhibit A hereto. The amounts so deposited, together
with all interest and other earnings thereon, constitute the "Escrow Fund". The parties acknowledge that, subject to the terms of this Agreement and the Purchase Agreement, the Escrow Funds belong
proportionately to each Purchaser, and not to the Company or the Escrow Agent.
- (b)
- Not later than two days prior to the Closing, the Company shall deposit into escrow with the Escrow Agent a Series B Note in the name of each Purchaser, in the principal amount to which such Purchaser is entitled on the Closing Date pursuant to the Purchase Agreement, and the Warrant to which such Purchaser is entitled on the Closing Date pursuant to the Purchase Agreement, registered in the name of such Purchaser. The Escrow Agent shall not disburse the Escrow Fund or any part thereof to the Company unless and until such deposits as are required under this Section 2(b) have been made.
- 3.
- Disbursement of Escrow Fund.
- (a)
- On the Closing Date, when the conditions to Closing set forth in Section 10 of the Purchase Agreement have been satisfied, the Company shall so notify each Purchaser. Upon being notified by Purchasers holding not less than twenty-five percent (25%) of the aggregate Adjusted Purchase Price for the Series B Notes and Warrants being purchased on the Closing Date that such Purchasers concur that the conditions to Closing have been satisfied, and provided that no Purchaser has informed the Escrow Agent that such Purchaser believes such conditions have not been met, and pursuant to Section 2.2 of the Purchase Agreement, the Escrow Agent (i) shall disburse to the Company an amount equal to the aggregate Purchase Price for the Series B Notes being purchased at the Closing, as it may be adjusted pursuant to Section 1.4 of the Purchase Agreement, and (ii) shall disburse to each Purchaser the Series B
- (b)
- Upon
being notified by the Company that the Exchange Offer will not be consummated, or if the Exchange Offer has not been consummated as of the Termination Date, the Escrow Agent
shall disburse to each Purchaser the Purchase Price deposited by such Purchaser and all interest accrued thereon. The Escrow Agent shall also disburse to each Purchaser on the Termination Date such
Purchaser's share of the Escrow Fund remaining in the Escrow Fund following purchases of Series B Notes and Warrants pursuant to Sections 1.5.
- (c)
- If and to the extent any Series B Notes and Warrants are purchased pursuant to Section 1.5, the Company shall in each case deposit with the Escrow Agent a Series B Note in the name of each Purchaser, in the principal amount to which such Purchaser is entitled pursuant to such Section, and the Warrant to which such Purchaser is entitled pursuant to such Section, registered in the name of such Purchaser, and the Escrow Agent shall (i) disburse to the Company from the Escrow Fund an amount equal to the aggregate Purchase Price of the Series B Notes and Warrants so purchased, and (ii) disburse to each Purchaser the Series B Notes and Warrants to which such Purchaser is entitled.
Notes and Warrants to which such Purchaser is entitled. Any funds not disbursed pursuant to this Section 3(a) shall remain in escrow and continue to be part of the Escrow Fund.
- 4.
- Investment of Escrow Fund. During the term of this Agreement, the Escrow Agent shall maintain the Escrow Fund in its
interest-bearing client fund account. All income earned on the Escrow Fund shall be taxable to the Purchasers and each Purchaser's social security number and/or taxpayer identification number as set
forth below such Purchaser's signature on the execution pages hereof shall be used on all accounts and investments of the Escrow Agent.
- 5.
- Escrow Agent.
- (a)
- Duties. The Escrow Agent undertakes to perform the specific duties which are set forth herein.
- (b)
- Indemnification.
- (i)
- The
Escrow Agent may rely on and shall be protected in acting or refraining from acting on any written notice, instruction or request furnished to it
hereunder and believed by it to be genuine and authorized and may assume that any person giving any written notice, request, advice or instruction in connection with or relating to this Agreement has
been fully authorized to do so, and that the signature of such person is genuine.
- (ii)
- The
Escrow Agent shall not be liable for any action taken by it in good faith and without gross negligence or willful misconduct, and believed by it to
be authorized or within the rights or powers conferred on it by this Agreement, and may consult with counsel of its own choice (which may consist of attorneys employed by the Escrow Agent) and shall
have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
- (iii)
- The
Company agrees to indemnify and hold harmless the Escrow Agent for, and against, any loss, liability, cost, claim, demand or expense incurred
without gross negligence or willful misconduct or bad faith on the part of the Escrow Agent, arising out of, or in connection with this Agreement or carrying out the Escrow Agent's duties hereunder,
including, without limitation, costs and expenses of defending the Escrow Agent against any claim of liability with respect thereto.
- (iv)
- The Escrow Agent's duties hereunder are purely ministerial in nature and the Escrow Agent shall have no implied obligations or responsibilities hereunder, nor shall it have any obligation or responsibility to collect funds or seek the deposit of money or property, nor is the Escrow Agent a party to any other agreement entered into between the Company and the Purchasers.
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- (c)
- Other Matters. The Escrow Agent (and any successor escrow agent or agents) reserves the right to resign as Escrow Agent at any time, provided thirty (30) days' prior written notice is given to the Company and the Purchasers and provided, further, that a mutually acceptable successor agent(s) has been designated by the Company and the Purchasers. Neither the Company nor the Purchasers will unreasonably withhold consent to appointment of a successor escrow agent. In the event that the Company and the Purchasers are not able to agree to a successor escrow agent(s) within this thirty (30) day period, the Escrow Agent may petition a court to designate a successor Escrow Agent. The resignation of the Escrow Agent (and any successor escrow agent or agents) shall be effective on delivery of the Escrow Fund to the successor escrow agent(s). The Company and the Purchasers reserve the right jointly to remove the Escrow Agent at any time, provided three (3) days' prior written notice is given to the Escrow Agent. In the event of litigation or dispute by the Company and the Purchasers in which the performance of the duties of the Escrow Agent is at issue, the Escrow Agent shall take no action until such action has been agreed to in writing by the Company and the Purchaser, or until receipt of an order of a court having jurisdiction directing Escrow Agent with respect to the action which is the subject of such litigation or dispute.
- 6.
- Termination. This Agreement shall terminate upon the disbursement of all amounts in the Escrow Fund pursuant to
Section 3.
- 7.
- Representation of the Company. Each Purchaser acknowledges that the Escrow Agent is counsel to the Company and,
notwithstanding this Agreement and the Escrow Agent's services hereunder, the Escrow Agent will continue to represent the Company in all matters, including matters adverse to such Purchaser arising
under this Agreement and the Note Purchase Agreement and all transactions contemplated thereby. To the extent that any such representation requires a waiver on the part of Purchasers, each Purchaser
by its signature below hereby grants such waiver.
- 8.
- Notices. All notices, demands, requests or other communications which may be or are required to be given, served or sent by any party pursuant to this Agreement shall be in writing and shall be given in the manner set forth in Section 19 of the Purchase Agreement, except that, if to the Escrow Agent, to:
Xxxxxxxxx
Xxxxxxx, LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, XX 00000
Attn: Xxx X. Xxxxx, Esquire.
Fax Number 000 000 0000
- 9.
- Expenses of Escrow Agent. If a suit is commenced against the Escrow Agent with respect to this Agreement or the Escrow
Fund, then the Escrow Agent may answer by way of interpleader in any court having jurisdiction and name the Company and the Purchasers as additional parties to such action, and the Escrow Agent may
tender the Escrow Fund into such court for determination of the respective rights, titles and interest of the Company and the Purchasers therein. On such tender, the Escrow Agent shall be paid by the
Company its reasonable attorneys' fees and expenses incurred in connection with any such interpleader action. If and when the Escrow Agent shall so interplead such parties, or any of them, and deliver
the Escrow Fund to the clerk of such court all of its duties hereunder shall cease, and it shall have no further obligation under this Agreement. Nothing herein shall prejudice any other right or
remedy of the Escrow Agent or the other parties to this Agreement.
- 10.
- Benefit and Assignment. This Agreement shall be binding on and shall inure to the benefit of the parties and their respective successors and assigns as permitted hereunder. No person or entity, other than the parties, is or shall be entitled to bring any action to enforce any provision of this
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Agreement against any of the parties, and the covenants and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties or their respective successors and assigns as permitted hereunder. No party to this Agreement may assign this Agreement or any rights hereunder without the prior written consent of the other parties.
- 11.
- Governing Law. This Agreement shall be governed by and construed under and in accordance with the laws of the State of New
York, without giving effect to principles of conflicts of laws.
- 12.
- Signatures in Counterparts. This Agreement may be executed in separate counterparts, none of which need contain the signatures of all parties, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more, than the number of counterparts containing the respective signatures of, or on behalf of, all parties hereto.
(Signature Pages Attached)
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This Escrow Agreement is executed by the parties as of the date first above written.
| UBIQUITEL OPERATING COMPANY | |||
By: |
|||
| Xxxxxx X. Xxxxxx, President and CEO | |||
ESCROW AGENT: |
|||
XXXXXXXXX XXXXXXX LLP |
|||
| By: | |||
| Xxx X. Xxxxx, Shareholder | |||
PURCHASERS: |
|||
BRU HOLDING CO., LLC |
|||
| By: | |||
| Name: Xxxxx X. Toll Title: Member Fax Number: (000) 000-0000 Subscription Amount: $3,000,000 SSN/ Fed. Tax ID No. |
|||
| Address: | 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx, XX 00000 |
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This Escrow Agreement is executed by the parties as of the date first above written.
| PURCHASERS: | |||
| CBT WIRELESS INVESTMENTS, L.L.C. | |||
By: |
|||
| Name: Xxxxx Xxxxx Title: Member Fax Number: (000) 000-0000 Subscription Amount: $500,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 X Xxxxxx, #000-000 Xxxxxx, XX 00000 |
| By: | |||
| XXXXXX X. XXXXXX Fax Number: (000) 000-0000 Subscription Amount: $250,000 SSN/ Fed. Tax ID No. |
|||
Address: |
000 00xx Xxxxxx Xxxx Xxxxxxx, XX 00000 |
| BALLYSHANNON PARTNERS, L.P. | |||
By: |
|||
| Name: Xxxxx X. Xxxxxx Title: President of Ballyshannon Partners, Inc., General Partner Fax Number: (000) 000-0000 Subscription Amount: $1,400,000 SSN/ Fed. Tax ID No. |
|||
Address: |
000 Xxxx Xxxx Xxxxxx Xxxx Xxxx, XX 00000 |
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This Escrow Agreement is executed by the parties as of the date first above written.
| PURCHASERS: | |||
TRELLUS PARTNERS, L.P. |
|||
| By: | |||
| Name: Xxxx Xxxxx Title: President of Trellus Management Company, LLC, General Partner Fax Number: (000) 000-0000 Subscription Amount: $2,000,000 SSN/ Fed. Tax ID No. |
|||
Address: |
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
XXXXXX PARTNERS, L.P. |
|||
By: |
|||
| Name: Xxxxxxx X. Xxxxxx Title: General Partner Fax Number: (000) 000-0000 Subscription Amount: $1,000,000 SSN/ Fed. Tax ID No. |
|||
Address: |
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 |
TALKOT CROSSOVER FUND, L.P. |
|||
| By: | |||
| Name: Xxxxxx X. Xxxx Title: Managing General Partner Fax Number: (000) 000-0000 Subscription Amount: $1,000,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 Xxxxxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 |
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This Escrow Agreement is executed by the parties as of the date first above written.
| PURCHASERS: | |||
EXPRESS MARINE, INC. |
|||
By: |
|||
| Name: Xxxxxxx X. Xxxxxxx, Xx. Title: Vice President Fax Number: (000) 000-0000 Subscription Amount: $500,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 Xxxxx Xxxxxx, Xxxxx 000X Xxxx xx Xxxxxxx, XX 00000 |
| 305 INVESTMENTS, L.P. | |||
By: |
|||
| Name: Xxxxxxx X. Xxxxxxx, Xx. Title: Managing Partner Fax Number: (000) 000-0000 Subscription Amount: $500,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 Xxxxx Xxxxxx, Xxxxx 000X Xxxx xx Xxxxxxx, XX 00000 |
| By: | |||
| XXXXXXX X. XXXXXXX, XX. Fax Number: (000) 000-0000 Subscription Amount: $100,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 Xxxxx Xxxxxx, Xxxxx 000X Xxxx xx Xxxxxxx, XX 00000 |
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This Escrow Agreement is executed by the parties as of the date first above written.
| PURCHASERS: | |||
XXXXXXX INVESTMENTS |
|||
By: |
|||
| Name: Xxxx Xxxxxxx Title: CEO Fax Number: (000) 000-0000 Subscription Amount: $560,000 SSN/ Fed. Tax ID No. |
|||
Address: |
0000 Xxxxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx, XX 00000 |
| BALLYSHANNON FAMILY PARTNERSHIP, L.P. | |||
By: |
|||
| Name: Xxxxx X. Xxxxxx Title: President of Ballyshannon Partners, Inc., General Partner Fax Number: (000) 000-0000 Subscription Amount: $100,000 SSN/ Fed. Tax ID No. |
|||
Address: |
000 Xxxx Xxxx Xxxxxx Xxxx Xxxx, XX 00000 |
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ESCROW AGREEMENT
RECITALS
