Exhibit 4.6
ASSUMPTION AGREEMENT
FOR
IWO HOLDINGS, INC.
This Assumption Agreement (this "Agreement") is entered into as of
February 10, 2005, by IWO HOLDINGS, INC., a Delaware corporation (the
"Successor"), and each of the other parties hereto (the "Guarantors") in
connection with the offering by IWO Escrow Company (the "Company") of
$150,000,000 in aggregate principal amount of Senior Secured Floating Rate notes
due 2012 (the "Senior Secured Floating Rate Notes") and $140,000,000 principal
amount at maturity of its 10.75% Senior Discount Notes due 2015 (the "Senior
Discount Notes" and, together with the Senior Secured Floating Rate Notes, the
"Notes"). Capitalized terms used, but not defined herein, have the meanings
assigned thereto in the Escrow and Security Agreement, dated as of January 3,
2005 (the "Escrow and Security Agreement"), by and among the Company, the
Successor, Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Xxxxxx Brothers Inc.
("Xxxxxx Brothers") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") (Bear Xxxxxxx, Xxxxxx Brothers and Xxxxxxx Xxxxx collectively,
the "Initial Purchasers") and U.S. BANK NATIONAL ASSOCIATION, as escrow agent,
initial collateral agent and trustee.
On the date hereof, the merger of the Company with and into the
Successor pursuant to the Agreement and Plan of Merger, dated as of February 10,
2005 (the "Escrow Merger"), was consummated. Section 1.4(c) of the Escrow and
Security Agreement provides that each of the parties listed on the signature
pages hereto will deliver this Agreement concurrently with the release of the
Escrow Property, whereby each such party will agree to assume the continuing
obligations of the Company under the Registration Rights Agreement (defined
herein) and the Purchase Agreement (defined herein) as set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree to as follows:
1. REGISTRATION RIGHTS AGREEMENT: Each of the Successor and the
Guarantors hereby agrees that it has reviewed the Registration Rights Agreement,
dated as of January 6, 2005, between the Initial Purchasers and the Company (the
"Registration Rights Agreement"), and each of the Successor and the Guarantors
further agrees, jointly and severally, to assume each of the continuing
obligations of the Company set forth in the Registration Rights Agreement, as if
it were an original signatory to the Registration Rights Agreement on the date
thereof.
2. PURCHASE AGREEMENT: Each of the Successor and the Guarantors
hereby agrees that it has reviewed the Purchase Agreement, dated as of December
14, 2004, between the Company and the Initial Purchasers (the "Purchase
Agreement"), and each of the Successor and the Guarantors further agrees,
jointly and severally, to assume each of the continuing obligations of the
Company set forth in the Purchase Agreement, as if it were an original signatory
to the Purchase Agreement on the date thereof.
3. NOTICES: Notices, instructions and other communications will be
sent as follows:
to Successor or any Guarantor: IWO Holdings, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000,
Attn.: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to: Xxxx, Weiss, Rifkind, Xxxxxxx and Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
to the Initial Purchasers: Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxx X. Xxxxxxxxxxx
Telecopier: (000) 000-0000
All notices and other communications under this Agreement will be in
writing in English and will be deemed given (i) on the date of delivery when
delivered personally, or (ii) on the next Business Day after delivery to a
recognized overnight courier or mailed first class (postage prepaid) or when
sent by facsimile to the parties (which facsimile copy will be followed by
delivery of an original by other method of delivery) at the addresses set forth
herein (or to such other address as a party may have specified by notice given
to the other parties pursuant to this provision).
4. SUCCESSORS AND ASSIGNS: This Agreement will inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment.
5. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which counterpart, when so executed and delivered, will be
deemed to be an original and all such counterparts together will constitute one
and the same instrument.
6. HEADINGS AND CAPTIONS: The headings and captions included in this
Agreement are included solely for convenience of reference and will have no
effect on the interpretation or operation of this Agreement.
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7. GOVERNING LAW; CONSTRUCTION: THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, 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. TIME
IS OF THE ESSENCE IN THIS AGREEMENT.
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The parties hereto have executed this Agreement as of the date first
set forth above.
Very truly yours,
IWO HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
INDEPENDENT WIRELESS ONE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Chief Financial Officer
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