EXHIBIT 10.93
NOTE AND WARRANT PURCHASE AGREEMENT
This Note and Warrant Purchase Agreement ("Agreement") is entered into and
is effective as of September 18, 2000, by and between U.S. Wireless Corporation,
a Delaware corporation (the "Company"), and Hewlett-Packard Credit Corporation,
a Delaware corporation ("HP").
RECITALS
WHEREAS, on the terms and subject to the conditions set forth herein, HP is
willing to advance to the Company an amount not to exceed $7,000,000 in the
aggregate; and
WHEREAS, the Company is willing to execute in favor of HP (i) a secured
promissory note in the maximum principal amount of $7,000,000 (the "Note") and a
(ii) a warrant for the purchase of certain shares of the Company's stock.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and representations,
warranties, covenants and conditions set forth below, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Note.
(a) Issuance and Delivery of the Note.
(i) At the Closing (as defined in subparagraph (ii)
below), the Company shall issue the Note to HP. The
Note shall be in the substantially the form attached
hereto as Exhibit B.
(ii) The issuance of the Note shall take place at a
closing to be held at such place and time and on such
date (the "Closing Date") as the Company and HP may
determine (the "Closing"). The Note shall be
registered in HP's name in the Company's records.
(b) Security. The obligations evidenced by the Note shall be
secured as provided in the Note.
(c) Advances. On or at any time after the Closing and until the
Termination Date (as defined in the Note), subject to the
terms and conditions contained herein and in the Note, at the
request of the Company, HP shall advance Loans (as defined in
the Note) to the Company in an amount not to exceed the
Maximum Loan Commitment (as defined in the Note). Loans shall
be sent to the address or pursuant to the wire instructions or
other instructions provided by the Company to HP at the time
of each such Loan request, no later than thirty (30) days from
the date on which each respective Loan is requested.
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2. Representation and Warranties of the Company. The Company represents and
warrants to HP that, as of the date hereof, except as disclosed in the
Disclosure Schedule attached hereto as Schedule 1:
(a) Due Incorporation, Qualification, etc. The Company is (i) a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation;
and (ii) is duly qualified, licensed to do business and in
good standing as a foreign corporation in each jurisdiction
where the failure to be so qualified or licensed would have a
material adverse effect on the Company and its subsidiaries,
if any, taken as a whole.
(b) Capitalization. As of the date hereof, the Company's total
authorized and issued capitalization is as set forth on the
Disclosure Schedule. All of the outstanding equity securities
of the Company have been duly authorized and are validly
issued, fully paid and nonassessable. As of the date hereof,
no holder of any equity security of the Company is entitled to
preemptive or similar statutory or contractual rights. All
outstanding securities of the Company were issued in
compliance with all applicable federal and state securities
laws.
(c) Authority; Enforceability. The execution, delivery and
performance by the Company of each Transaction Document (as
defined below) and the consummation by the Company of the
transaction contemplated thereby (i) are within the power of
the Company, and (ii) have been duly authorized by all
necessary actions on the part of the Company. Each
Transaction Document executed, or to be executed, by the
Company has been, or will be, duly executed and delivered by
the Company and constitutes, or will constitute, a legal,
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally and general principles of
equity. The shares of the Company's common stock, when
issued upon the exercise of the Warrant (the "Underlying
Stock"), in accordance with its terms and conditions and
upon either payment therefor in full or net exercise
pursuant to the terms thereof, will be validly issued, fully
paid and nonassessable and will be free of any liens or
encumbrances, other than any liens or encumbrances created
by or imposed upon HP through no action of the Company;
provided, however, that the Underlying Stock will be subject
to restrictions on transfer under federal or state
securities laws. The Underlying Stock is not subject to any
preemptive rights or rights of first refusal.
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(d) Subsidiaries. The Disclosure Statement sets forth (i) each
corporation, association, partnership, or other business
entity which the Company owns or controls, directly or
indirectly, (ii) the Company's percentage of ownership of each
such business entity and (iii) the jurisdiction under which
each such business entity is organized, in each case, as of
the date of the Disclosure Statement.
(e) Non-Contravention. The execution and delivery by the
Company of the Transaction Documents and the performance and
consummation of the transactions contemplated thereby do not
and will not (i) violate the Certificate of Incorporation or
Bylaws of the Company or any judgment, order, writ, decree,
statute, rule or regulation applicable to the Company; (ii)
violate any provision of, or result in the breach or the
acceleration of, or entitle any other person to accelerate
(whether after the giving of notice or lapse of time or
both), any mortgage, indenture, agreement, instrument or
contract to which the Company is a party or by which it is
bound; or (iii) result in the creation or imposition of any
lien upon any property, asset or revenue of the Company
(other than any lien in favor of HP in accordance with the
Note) or the suspension, revocation, impairment, forfeiture,
or nonrenewal of any material permit, license, authorization
or approval applicable to the Company, its business or
operations, or any of its assets or properties.
(f) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental
authority or other person or entity (including without
limitation the shareholders of any person or entity) is
required in connection with the execution and delivery of the
Transaction Documents by the Company and the performance and
consummation of the transactions contemplated thereby.
(g) Financial Statements.
(i) The consolidated balance sheet of the Company and its
subsidiaries, if any, for the year ended March 31, 2000, and
consolidated statements of income and cash flows of the
Company and it subsidiaries, if any, for such year (the
"Audited Financial Statements") and the unaudited
consolidated balance sheet of the Company and its
subsidiaries, if any, as of the quarter ended June 30, 2000,
and the consolidated statements of income and cash flows of
the Company and its subsidiaries, if any, for such periods
and for the current fiscal year to date (the "Unaudited
Financial Statements," and together with the Audited
Financial Statements, the "Financial Statements"), in each
case which have been delivered to HP, (A) were prepared in
accordance with generally accepted accounting principles
("GAAP") (except that the Unaudited Financial Statements do
not contain footnotes required by GAAP or normal year-end
closing adjustments); (B) are in accordance with the books
and records of the Company and its subsidiaries, if any,
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which have been maintained in accordance with good business
practices; and (C) fairly present the consolidated financial
position of the Company as of the dates presented therein
and the income for the periods presented therein. The
Financial Statements fairly present the financial condition
and operating results of the Company as of the dates, and
for the periods, indicated therein, subject, with respect to
Unaudited Financial Statements, to normal year-end audit
adjustments. Except as set forth in the Financial
Statements, the Company has no material liabilities,
contingent or otherwise, other than those incurred in the
ordinary course of business. The Company has not capitalized
any software development costs except as disclosed in the
Financial Statements.
(h) Absence of Changes. Since the date of the Unaudited Financial
Statements, there has not been to the Company's knowledge:
(i) Any change in the assets, liabilities, financial
condition or operations of the Company from that
reflected in the Financial Statements (other than
changes in the ordinary course of business) which
individually or in the aggregate has had or is
expected to have a material adverse effect on such
assets, liabilities, financial condition or
operations of the Company;
(ii) Any material change in the contingent obligations
of the Company by way of guaranty, endorsement,
indemnity, warranty or otherwise;
(iii) Any damage, destruction or loss, whether or not
covered by insurance, materially and adversely
affecting the properties, business or financial
condition of the Company;
(iv) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(v) Any direct or indirect loans made by the Company to
any shareholder, employee, officer or director of the
Company, other than advances made in the ordinary
course of business;
(vi) Any declaration or payment of any dividend on common
stock or other distribution of the assets of the
Company;
(vii) Any debt, obligation or liability incurred, assumed
or guaranteed by the Company, except those for
immaterial amounts and for liabilities incurred in
the ordinary course of business;
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(viii) Any sale, assignment or transfer (except by means of
licenses granted in the ordinary course of business)
of any patents, trademarks, copyrights, trade secrets
or other intangible assets; or
(ix) Any change in any material agreement to which the
Company is a party or by which it is bound which
materially and adversely affects the business,
assets, liabilities, financial condition or
operations of the Company.
(i) Title. Each of the Company and the Company's subsidiaries,
if any, owns and has good and marketable title in fee
simple absolute to, or a valid leasehold interest in, all of
its real properties and good title to all personal property
included in its other assets and properties as reflected in
the Unaudited Financial Statements (except those assets and
properties disposed of in the ordinary course of business
since the date of such Unaudited Financial Statements) and
all respective assets and properties acquired by the Company
and the Company's subsidiaries, if any, since such date
(except those disposed of in the ordinary course of
business). As of the date hereof, such assets and properties
are subject to no lien, except for Permitted Liens (as
defined in the Note) and with respect to leased assets, the
terms of the lease.
(j) Resignation/Termination of Key Officers. There has been no
resignation or termination of employment of any of the
individuals holding any of the following officer's positions
within the Company since August 1, 2000: Dr. Oliver
Hilsenrath, Chairman of the Board and Chief Executive Officer;
David Klarman, Vice President and General Counsel, Dale Stone,
President and Chief Operating Officer, Jan Klien, Vice
President; and as of the date hereof, the Company does not
know of the impending resignation or termination of employment
of any person holding any such office.
(k) Material Liabilities. The Company has no material liabilities
or obligations, absolute or contingent (individually or in the
aggregate), (other than those incurred in the ordinary course
of business) except the liabilities and obligations set forth
in the Financial Statements.
(l) Patents and Other Intangible Assets.
(i) To the Company's knowledge, the Company owns or has the
right to use, all patents, trademarks, service marks, trade
names, copyrights (and licenses with respect to the
foregoing) used in the conduct of its business (collectively
the "Patents and Trademarks"). The Company has not been
served or received any notice in connection with any pending
claims against the Company alleging that the conduct of the
Company's business infringes upon or otherwise conflicts
with the right or claimed right of any person under or with
respect to any of the Patents and Trademarks, other than
claims that have been asserted in correspondence to the
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Company, which, in each case, (A) have not ripened into
legal action, (b) have been evaluated by the Company and its
counsel, and (c) are believed by the Company to be without
merit. To the Company's knowledge, there are no threatened
claims against the Company alleging that the conduct of the
Company's business infringes upon, or otherwise conflicts
with the right or claimed right of any person under or with
respect to any of the Patents and Trademarks. To the extent
that the Company may have received communications from other
entities claiming rights in connection with the Patents and
Trademarks, the Company in good faith believes such claims
to be without merit. The Company is not obligated or under
any liability whatsoever to make any payments to any of its
managers or members of its Board of Directors, by way of
royalties, fees or otherwise to any owner of, licensor of or
other claimant to any patent, trademark, trade name,
copyright or other intangible asset, with respect to the use
thereof in connection with the conduct of its business or
otherwise. Except in the ordinary course of business, the
Company has not granted any licenses or manufacturing rights
with respect to its business as now conducted or as now
proposed to conduct.
(ii) The Company owns or has the right to use all trade
secrets, including know-how, inventions, designs, processes
and technical data required for the development, operation
and sale of all products and services sold and now proposed
to be sold by the Company, free and clear, as of the date
hereof, of any rights, liens or claims of others, other than
Permitted Liens.
(iii) The Company has obtained substantially similar
confidentiality and non-disclosure agreements from its
employees regarding its intellectual property and trade
secrets.
(m) Securities Law Compliance. Subject to the accuracy of HP's
representations and warranties in Section 3 below, the offer,
sale and issuance of the Note to be issued in conformity with
this Agreement and the issuance of any Underlying Stock upon
exercise of the Warrant pursuant to the terms thereof,
constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act, and the
securities laws of the states of California and Delaware.
(n) Litigation. Except as described in the Company's reports filed
with the Securities and Exchange Commission pursuant to the
reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), relevant copies of which have
been provided by the Company to HP, there are no actions,
suits, proceedings or investigations pending or, to the
Company's knowledge, threatened against the Company or its
properties before any court or governmental agency.
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(o) No Brokers or Finders. The Company has not incurred, and will
not incur, directly or indirectly, as a result of any action
taken or permitted to be taken by the Company, any liability
for brokerage or finders' fees or agents' commissions or
similar charges in connection with the execution and
performance of this Agreement or any other Transaction
Document.
(p) Security Interest. The security interests created under the
Note create a valid and enforceable security interest in the
Collateral (as defined in the Note), and upon the filing of
UCC-1 financing statements in the offices of the appropriate
agency in Delaware and California and payment of any fees,
charges or taxes required in connection therewith, HP will
have a perfected, first priority security interest in all
Collateral which is identified in said UCC-1 financing
statements that may be perfected by filing a financing
statement in said states.
(q) Disclosure. This Agreement with the Disclosure Schedule, the
Note, the Warrant, the Registration Rights Agreement dated as
of the date hereof between HP and the Company (the
"Registration Rights Agreement"), and the UCC-1 financing
statements and other documents to be executed in connection
with the Note (collectively, the "Transaction Documents"),
when taken as a whole, do not contain any untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were
made.
3. Representations and Warranties of HP. HP represents and warrants to
the Company that:
(a) Authority. The execution, delivery and performance by
HP of each Transaction Document and the consummation by HP
of the transactions contemplated thereby are within the
power of HP and have been duly authorized by all necessary
actions on the part of HP. Each Transaction Document
executed, or to be executed, by HP has been or will be, duly
executed and delivered by HP and constitutes, or will
constitute, a legal, valid and binding obligation of HP,
enforceable against HP in accordance with its terms, except
as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement
of creditors' rights generally and general principles of
equity.
(b) Non-Contravention. The execution and delivery by HP of
this Agreement, the Registration Rights Agreement, the
Warrant, and it's acceptance of the Note, together with it's
performance and consummation of the transactions
contemplated thereby do not and will not (i) violate the
certificate of incorporation or Bylaws of HP or to its
knowledge any judgment, order, writ, decree, statute, rule
or regulation applicable to HP; (ii) violate any provision
of, or result in the breach or acceleration of, or entitle
<PAGE>
any other person to accelerate (whether after the giving of
notice or lapse of time or both) any mortgage, indenture,
agreement, instrument or contract to which HP is a party or
by which it is bound; or (iii) result in the creation or
imposition of any lien upon any property or assets of HP or
the suspension, revocation, impairment, forfeiture or
non-renewal of any material permit, license, authorization
or approval applicable to HP, its business or operations, or
any of its assets or properties.
(c) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with any
governmental authority is required in connection with the
execution and delivery of this Agreement, the Registration
Rights Agreement or the Warrant, or HP's acceptance of the
Note and the performance and consummation of the
transactions contemplated thereby.
(d) Securities Law Investment Representations. HP acknowledges
that the Note, the Warrant and the Underlying Stock
have not been and will not be registered under the Act, or
the securities laws of any state of the United States or any
other jurisdiction, and except, with respect to the
Underlying Stock, as provided in the Registration Rights
Agreement, HP has no right to require such registration. HP
is purchasing the Note, the Warrant and the Underlying Stock
for HP's own account for investment and not for the interest
of any other person and not for resale to others or with a
view to or for sale in connection with any distribution
thereof. HP is an Accredited Investor (as that term is
defined in Rule 501 of Regulation D promulgated under the
Act). HP will not resell or otherwise dispose of the Note,
the Warrant or the Underlying Stock or any interest therein
at any time unless (i) such securities are registered under
the Act and appropriate state securities laws, or (ii) an
exemption from registration is available and, if the Company
requests, the Company receives an opinion of counsel
reasonably satisfactory to it that such exemption is
available, and the written approval of the Company to any
transfer has first been obtained.
(e) Experience as an Investor. HP has experience as an
investor in securities of companies in the developmental
stage and acknowledges that it can bear the economic risk of
its investment in the Company's securities. HP has (i) a
preexisting knowledge of the industry in which the Company
operates that is of a nature and duration which enables HP
to be aware of the character, business acumen and general
business and financial circumstances of the Company, and
(ii) by reason of its business or financial experience, has
the capacity to protect its own interests in connection with
the transactions contemplated herein.
(f) Disclosure of Information. HP has received and reviewed
information about the Company and has had an opportunity to
discuss the Company's business, management and financial
affairs with the Company's management. HP acknowledges that
such discussions, as well as any written information issued
by the Company in connection therewith may have contained
forward-looking statements involving known and unknown risks
and uncertainties which may cause the Company's actual
results in future periods or plans for future periods to
differ materially from what was anticipated, and that except
as expressly stated herein or in the Transaction Documents,
no representations or warranties were or are being made with
respect to any such forward-looking statements or the
probability of achieving any of the results projected in any
of such forward-looking statements; provided, however, that
none of the foregoing shall be construed as a limitation on
any representation or warranty expressly made by the Company
herein or in the Transaction Documents, nor shall the
foregoing limit HP's express rights or remedies hereunder or
under applicable law.
(g) Residence. The office of HP at which investment decisions
were made in connection herewith is located in the State of
California.
(h) Further Restrictions on Disposition. The parties hereto
acknowledge that the Warrant and the Registration Rights
Agreement each contain certain additional restrictions on
the transfer of the Underlying Shares.
(i) Legends. The parties hereto acknowledge that the
Underlying Shares and any securities which may be issued in
respect of or in exchange for the Underlying Shares, shall
bear a restrictive legend until such time as such a legend
is no longer required by the terms of the Warrant, the terms
of this Agreement or applicable law. The wording of such
legend is substantially provided in Section 7 of the
Warrant.
4. Conditions to Closings.
(a) Conditions of HP to Closing. HP's obligation hereunder to
advance funds to the Company is subject to the satisfaction,
on or prior to the Closing Date, of all the following
conditions, any of which may be waived in writing in whole or
in part by HP:
(i) Representations and Warranties; Covenants; Officer's
Certificate; Opinion of Counsel.
(A) The representations and warranties made by
the Company herein or in any other
Transaction Document shall be true and
correct as of the Closing Date;
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(B) The Company shall have performed all
covenants set forth in the Transaction
Documents required to be performed prior to
the Closing;
(C) A duly authorized officer of the Company
shall have executed and delivered to HP a
certificate, dated the Closing Date, with
respect to the satisfaction of the
conditions set forth herein; and
(D) HP shall have received an opinion of counsel
to the Company regarding the enforceability
and due authorization of the transactions
contemplated by the Transaction Documents in
substantially the form attached hereto as
Exhibit A.
(ii) Transaction Documents. The Company shall have duly
executed and delivered to HP the following documents:
(A) This Agreement;
(B) The Note;
(C) The Registration Rights Agreement;
(D) The Warrant;
(E) UCC-1 financing statements and other
documents and instruments which HP
determines are required to perfect its
security interest in the collateral
described in the Note.
(iii) Corporate Documents. The Company shall have delivered
to HP each of the following:
(A) A copy of the Company's Certificate of
Incorporation certified as of a recent date
prior to the Closing Date by the Secretary
of State of the State of Delaware;
(B) A Certificate of Good Standing with respect
to the Company, certified as of a recent
date prior to the Closing Date by the
Secretary of State of the State of Delaware;
and
(C) A certificate of the Secretary of the
Company, dated the Closing Date, certifying
that (1) the Certificate of Incorporation of
the Company, delivered to HP pursuant to the
terms hereof, is in full force and effect
and has not been amended, supplemented,
revoked or repealed since the date of such
certification; (2) attached thereto is a
true and correct copy of the Bylaws of the
Company as in effect on the Closing Date;
(3) attached thereto is a true and correct
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copy of resolutions duly adopted by the
Board of Directors of the Company
authorizing the execution, delivery, and
performance by the Company of this Agreement
and the other Transaction Documents and the
consummation of the transactions
contemplated hereby and thereby; and (4)
there are no proceedings for the dissolution
or liquidation of the Company that have
commenced or, to the knowledge of the
Company, been threatened.
(b) Conditions of the Company to Closing. The Company's
obligations hereunder are subject to satisfaction, on or prior
to the Closing Date, of all of the following conditions, any
of which may be waived in whole or part by the Company:
(i) Representations and Warranties; Covenants.
(A) The representations and warranties made by
HP herein and in the Registration Rights
Agreement shall be true and correct as of
the Closing Date; and.
(B) HP shall have performed all covenants set
forth in this Agreement required to be
performed prior to the Closing.
(ii) Transaction Documents. HP shall have duly executed
and delivered to the Company the following documents:
(A) This Agreement;
(B) The Registration Rights Agreement;
(C) The Warrant;
(D) The Note.
5. Covenants.
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(a) Financial Statements. The Company will furnish the following
reports to HP for so long as any amounts are outstanding under
the Note:
(i) Annual. As soon as practicable after the end of each
fiscal year of the Company, the Company shall provide
HP with a copy of its annual report as filed with the
Securities and Exchange Commission.
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(ii) Quarterly. As soon as practicable after the end of
the first, second and third quarterly accounting
periods in each fiscal quarter of the Company, the
Company shall provide HP with its quarterly reports
as filed with the Securities and Exchange Commission
with respect to each such fiscal quarter.
(iii) Information Provided to Shareholders. Promptly upon
the mailing thereof to the shareholders of the
Company, copies of all financial statements, reports
and proxy statements so mailed.
(iv) Securities Filings. Promptly upon the filing thereof,
copies of all reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Company shall have filed
with the Securities and Exchange Commission.
(v) Other Information. Such other information which HP in
good faith determines is related to the Transaction
Documents and the transactions contemplated thereby,
as HP reasonably requests; provided that any such
information given by the Company to HP shall be
afforded confidential treatment by HP if it is
clearly marked "confidential" by the Company prior to
its delivery to HP.
6. Miscellaneous.
(a) Confidentiality. Reference is made to the Non-Disclosure
Agreement (the "NDA") by and between the Company and Hewlett
Packard Company dated as of January 12, 2000, a copy of which
is attached hereto as Exhibit C. From and after the date
hereof, HP and the Company (i) acknowledge that they may
receive confidential information of the other party, and (ii)
agree that such confidential information shall be handled in a
manner consistent with the terms and conditions of the NDA.
(b) Waivers and Amendments. No provision of this Agreement may be
amended or modified without the written consent of the Company
and HP. No provision of this Agreement may be waived unless
such waiver is in writing and then only to the extent
specifically set forth in such writing. A waiver with
reference to one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy as to a
subsequent event.
(c) Governing Law. This Agreement and all actions arising out of
or in connection with this Agreement shall be governed by and
construed in accordance with the laws of the State of
California, without regard to the conflicts of law provisions
of the State of California or of any other state.
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(d) Waiver of Jury Trial. HP and the Company each hereby
irrevocably waives any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby, whether the claims
raised in such proceeding are based on contract, tort, or
otherwise.
(e) Survival. The representations and warranties made herein
shall survive the execution and delivery of this Agreement.
(f) Successors and Assigns. Subject to the restriction on transfer
described in Section 6(g) below, the rights and obligations of
the Company and HP shall be binding upon and benefit their
respective successors, assigns, heirs, administrators, and
transferees.
(g) Assignment by HP and the Company. Neither the Note nor
any of the rights, interests or obligations thereunder or
hereunder or under any other Transaction Document may be
assigned, by operation of law or otherwise, in whole or in
part, by the Company without the prior written consent of HP
(except, in the case of the Company, to a successor entity
pursuant to a migratory merger to another state). Neither
the Note nor any of the rights, interests or obligations
thereunder or hereunder or under any other Transaction
Document may be assigned, by operation of law or otherwise,
in whole or in part, by HP (except for assignments to
Hewlett-Packard Company or any successor thereto or any
other entity or entities acting in concert which control or
controls more than 50% of the votes attaching in the
aggregate to all classes of stock of HP which carry voting
rights) without the prior written consent of the Company.
(h) Entire Agreement. This Agreement, together with the
Note and the other Transaction Documents, constitute the
full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
(i) Notices. Any notice, request, or other communication
required or permitted hereunder shall be in writing and
shall be deemed to have been duly given on the date of
delivery if personally delivered, on the date of being faxed
if sent by confirmed fax, on the first business day after
being sent if sent by recognized overnight courier, and on
the third business day after being mailed if sent by
registered or certified mail, postage prepaid, addressed (i)
if to HP to: Hewlett-Packard Company, 333 Logue Avenue,
MS32, Mountain View, CA 94043, Attention: General Manager,
fax number, (650)919-8013; with a copy to Hewlett-Packard
Company, 3000 Hanover Street, MS20BQ, Palo Alto, CA 94304,
Attention General Counsel, fax number (650)857-4392, or (ii)
if to the Company to: U.S. Wireless Corporation, 2303 Camino
Ramon, San Ramon, CA 94583 Attention: The Office of the
President, fax number (925) 830-8821, with a copy to U.S.
Wireless Corporation, 2303 Camino Ramon, San Ramon, CA
94583, Attention: Legal Department, fax number
(925) 830-1654.
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(j) Expenses. Each party shall bear and pay its own legal
fees in connection with the negotiation and execution of
this Agreement and the other Transaction Documents.
(k) Severability of this Agreement. If any provision of this
agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
(l) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original
but all of which together shall be deemed to constitute one
instrument.
(m) Venue. All disputes arising out of this Agreement shall be
subject to the exclusive jurisdiction of the state and federal
courts located in the State of California.
IN WITNESS WHEREOF, each of the parties has caused this Note Purchase
Agreement to be duly executed and delivered by its duly authorized
representative as of the date first written above.
HEWLETT-PACKARD CREDIT CORPORATION U.S. WIRELESS CORPORATION
By: By:
Name: Name:
Title: Title:
