INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
This Intercreditor and Collateral Agency Agreement (this "Agreement"),
dated as of August 18, 1997, is by and among Marine Midland Bank, as trustee
(the "Trustee"), under the Indenture, dated as of August 15, 1996 (the
"Indenture"), between International Wireless Communications Holdings, Inc., a
Delaware corporation (the "Company"), and the Trustee, and those lenders listed
on Exhibit A (the "Lenders") to the Loan Agreement between the Company and the
Lenders dated as of August 18, 1997 (the "Loan Agreement" or "Bank Facility"),
and Bankers Trust Company, as Collateral Agent (as defined below). All terms
used herein which are defined in Section 1 hereof or in the text of any other
Section hereof shall have the meanings given therein. Capitalized terms used
but not defined herein shall have the meanings assigned thereto in the
Indenture.
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
meanings specified with respect thereto below. Any plural term that is used
herein in the singular shall be taken to mean each entity or item of the defined
class and any singular term that is used herein in the plural shall be taken to
mean all of the entities or items of the defined class, collectively.
"Avoided Payments" shall mean any payment of any Secured Indebtedness
made to any Secured Party hereunder that is subsequently invalidated, declared
fraudulent or preferential, set aside or required to be paid to a trustee,
receiver, or any other party under any bankruptcy act, state or federal law,
common law or equitable cause.
"Collateral" shall mean all property and assets, and interests in
property and assets, upon or in which the Company has granted a lien or security
interest to the Collateral Agent or any Secured Party to secure any Secured
Indebtedness.
"Collateral Agent" shall mean Bankers Trust Company, in its capacity
as agent for the Secured Parties pursuant to this Agreement, or any successor or
replacement agent which may be appointed pursuant to this Agreement.
"Collateral Agent Expenses" shall mean all reasonable costs and
expenses incurred by the Collateral Agent under this Agreement and the Pledge
Agreements when acting with a good faith belief that its actions are not
contrary to the provisions of this Agreement, including in connection with the
realization upon or protection of the Collateral or enforcing or defending any
lien upon or security interest in the Collateral or any other action taken under
or in connection with this Agreement or the Pledge Agreements, reasonable
expenses incurred for legal counsel in connection with the foregoing, and any
other costs, expenses or liabilities incurred by the Collateral Agent for which
the Collateral Agent is entitled to be reimbursed or indemnified pursuant to
this Agreement or any Collateral Document.
"Collateral Agent Obligations" shall mean, without duplication, all
obligations of the Company to pay, reimburse or indemnify the Collateral Agent
for any Collateral Agent Expenses.
"Collateral Documents" shall mean the Pledge Agreements, any other
agreement, document or instrument in effect on the date hereof or executed after
the date hereof under which the Company has granted a lien upon or security
interest in any property or assets to secure all or any part of the Secured
Indebtedness and all financing statements, certificates, documents and
instruments relating thereto or executed or provided in connection therewith,
each as amended, restated, supplemented or otherwise modified from time to time.
"Enforcement" shall mean (a) for any Secured Party or any holder of
Securities to make demand for payment of or accelerate the time for payment
prior to the scheduled payment date of any Secured Indebtedness, (b) for any
Secured Party or any holder of Securities to commence the judicial enforcement
of any rights or remedies under or with respect to any Financing Agreement or
any Secured Indebtedness, or to set-off or appropriate any balances held by it
for the account of the Company or any other property at any time held or owing
by it to or for the credit or for the account of the Company, (c) for the
Collateral Agent to commence the judicial enforcement of any rights or remedies
under any Collateral Document (other than an action solely for the purpose of
establishing or defending the lien or security interest intended to be created
by any Collateral Document upon or in any Collateral as against or from claims
of third parties on or in such Collateral), to set-off or appropriate any
balances held by it for the account of the Company or any other property at any
time held or owing by it to or for the credit or for the account of the Company
or to otherwise take any action to realize upon the Collateral, or (d) the
commencement by, against or with respect to the Company of any proceeding under
any bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law or for the
appointment of a receiver for the Company or its assets.
"Event of Default" shall mean an "Event of Default", as defined in any
Financing Agreement.
"Financing Agreements" shall mean the Indenture and the Loan Agreement
(including the agreements and other exhibits attached thereto).
"Lender(s)" shall mean the lenders under the Bank Facility.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization, and a
government or any department or agency thereof
"Refinanced Person" shall have the meaning given in Section 16(b).
"Refinancing Person" shall have the meaning given in Section 16(b).
"Repurchase Offer" shall have the meaning specified in the Indenture.
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"Required Secured Parties" at any time shall mean the holders of more
than 50% of this aggregate outstanding principal amount of the Securities and
the indebtedness outstanding under the Bank Facility.
"Requisite Lenders" shall have the meaning specified in the Loan
Agreement; PROVIDED, HOWEVER, that upon and after the day that is 91 days after
the payment in full of all obligations of the Company to the Lenders under the
Loan Agreement, all requirements herein for the approval or consent of the
Requisite Lenders shall refer to the approval or consent of the Trustee.
"Requisite Securityholders" at any time shall mean holders of
Securities (or, without duplication, the Trustee acting at the direction of
holders of Securities) representing, in the aggregate, more than 50% of the
aggregate outstanding principal amount of all Securities; PROVIDED, HOWEVER,
that upon and after the day that is 91 days after the payment in full of all
obligations of the Company under the Indenture and the Securities to the Trustee
and the holders of the Securities, all requirements herein for the approval or
consent of the Requisite Securityholders shall refer to the approval or consent
of the Requisite Lenders.
"Secured Indebtedness" shall mean the Collateral Agent Obligations and
the indebtedness, liabilities and obligations of the Company under the Indenture
and the Securities to the Trustee and the holders from time to time of the
Securities and under a Financing Agreement relating to a Bank Facility to the
Lenders thereunder, and any agent for such Lenders, now or hereafter owed to any
Secured Party evidenced by or arising under, by virtue of or pursuant to the
Financing Agreements, the Securities, or the Collateral Documents, whether such
indebtedness, liabilities and obligations are direct or indirect, now exist or
hereafter arise, and all renewals and extensions thereof; PROVIDED, HOWEVER,
that maximum amount of indebtedness, liabilities and obligations of the Company
to all Lenders under any Financing Agreements relating to the Bank Facility
shall not exceed $20 million (or such other amount permitted to be incurred by
the Company under the Indenture).
"Secured Parties" shall mean the Lender and the Trustee, for itself
and on behalf of the holders of the Securities.
"Trustee" shall mean Marine Midland Bank in its capacity as trustee
under the Indenture, or any successor or replacement trustee that may be
appointed pursuant to the Indenture.
2. APPOINTMENT OF BANKERS TRUST COMPANY AS COLLATERAL AGENT FOR THE
SECURED PARTIES.
(a) APPOINTMENT OF COLLATERAL AGENT. Subject in all respects to
the terms and provisions of this Agreement, the Secured Parties hereby appoint
Bankers Trust Company to act as agent for the benefit of the Secured Parties
with respect to the liens upon and the security interests in the Collateral and
the rights and remedies granted under and pursuant to the Collateral Documents,
and Bankers Trust Company hereby accepts such appointment and agrees to act as
such agent. To the extent necessary or desirable to enable the Collateral Agent
to
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enforce or otherwise foreclose and realize upon any of the liens or security
interests in the Collateral in any legal proceeding which the Collateral Agent
either commences or joins as a party in accordance with the terms hereof, each
of the Secured Parties agrees to join as a party in such proceeding and take
such action therein to enforce and obtain a judgment for the payment of the
Secured Indebtedness held by it or as to which it is the trustee, subject, in
the case of the Trustee, to its right to prior indemnity, and other provisions
granting it rights not to take action, under the Indenture.
(b) DUTIES OF COLLATERAL AGENT. Subject to the Collateral Agent
having been directed to take such action in accordance with the terms of this
Agreement, each Secured Party hereby irrevocably authorizes the Collateral Agent
to take such action on its behalf under the provisions of the Collateral
Documents and any other instruments, documents and agreements referred to
therein and to exercise such powers thereunder as are specifically delegated to
the Collateral Agent by the terms thereof and such other powers as are
reasonably incidental thereto. Subject to the provisions of Section 10 hereof,
the Collateral Agent is hereby irrevocably authorized to take all actions on
behalf of the Secured Parties to enforce the rights and remedies of the
Collateral Agent and the Secured Parties provided for in the Collateral
Documents or by applicable law with respect to the liens upon and security
interests in the Collateral granted to secure the Secured Indebtedness;
PROVIDED, HOWEVER, that, notwithstanding any provision to the contrary herein or
in any of the Collateral Documents, (i) the Collateral Agent shall act at all
times solely at and in accordance with the written direction of the Required
Secured Parties, (ii) the Collateral Agent shall not, without the written
consent of the Requisite Lenders and the Requisite Securityholders, release or
terminate by affirmative action or consent any lien upon or security interest in
any Collateral granted under any Collateral Documents except (x) upon
dispositions of Collateral by the Company as permitted in accordance with the
terms of the Financing Agreements or the Collateral Documents prior to the
occurrence of an Event of Default (and, for this purpose, the Collateral Agent
(1) shall not be deemed to have knowledge of an Event of Default unless the
Collateral Agent has received notice thereof, and (2) may rely, as to whether a
disposition of Collateral is permitted by the Financing Agreements or the
Collateral Documents, upon a certificate signed by the Requisite Lenders (as
defined in the Loan Agreement), as to the Bank Facility, and the Trustee, as to
the Indenture, and any such certificate shall be full warranty by the applicable
Secured Party to the Collateral Agent as to the truth of the matters certified
to for any action taken by the Collateral Agent in reasonable reliance thereon),
and (y) upon disposition of such Collateral after an Event of Default pursuant
to direction given under clause (i) hereof, and (iii) the Collateral Agent shall
not accept any Secured Indebtedness in whole or partial consideration for the
disposition of any Collateral. The Collateral Agent agrees to make such demands
and give such notices under the Collateral Documents as may be requested by, and
to take such action to enforce the Collateral Documents and to foreclose upon,
collect and dispose of the Collateral or any portion thereof as may be directed
by, the Required Secured Parties; PROVIDED, HOWEVER, that the Collateral Agent
shall not be required to take any action (A) that is contrary to law or the
terms of the Collateral Documents, or this Agreement, or (B) if the Collateral
Agent determines, in good faith, that the potential Collateral Agent Expenses
resulting from such action are likely to exceed the amounts available for
distribution to the Collateral Agent pursuant to Section 5(a)(i) hereof, and so
notifies the Secured Parties giving the Collateral Agent the direction to take
such action, unless
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the Collateral Agent is provided adequate security and indemnity against the
Collateral Agent Expenses which may be incurred by it in taking such action and
complying with any such request or direction, including such reasonable advances
as may be requested by the Collateral Agent.
(c) REQUESTING INSTRUCTIONS. The Collateral Agent may at any
time request directions from the Secured Parties as to any course of action or
other matter relating to the performance of its duties under this Agreement or
the Collateral Documents and the Secured Parties shall respond to such request
in a reasonably prompt manner. The Collateral Agent shall have the right at any
time to seek instructions concerning its obligations hereunder from any court of
competent jurisdiction.
(d) EMERGENCY ACTIONS. If the Collateral Agent has asked the
Secured Parties for instructions following the receipt of any notice of an Event
of Default and if the Required Secured Parties have not responded to such
request within 30 days, the Collateral Agent may, but shall not be obligated to,
take such actions with regard to such Event of Default which the Collateral
Agent, in good faith, believes to be reasonably required to protect the
Collateral from damage or destruction; PROVIDED, HOWEVER, that once instructions
have been received from the Required Secured Parties, the actions of the
Collateral Agent shall be governed thereby and the Collateral Agent shall not
take any further action which would be contrary thereto.
(e) DOCUMENT AMENDMENTS. No amendment, supplement,
modification, restatement, or waiver of any provision of any Collateral Document
or any consent to any departure by the Company therefrom which could reasonably
be expected to adversely affect any of the Secured Parties' rights or interests
thereunder or with respect to any of the Collateral, or any of the Collateral
Agent's rights, immunities or indemnities hereunder or thereunder or which could
reasonably be expected to impose any additional responsibilities upon any
Secured Party or the Collateral Agent shall be effective against such Person
without the written consent of such Person (in the case of any Secured Party,
given in accordance with the applicable Financing Agreements and Collateral
Documents).
(f) ADMINISTRATIVE ACTIONS. The Collateral Agent may, but shall
not be obligated to, take such actions hereunder and under the Collateral
Documents not inconsistent with the instructions of the Required Secured Parties
or the terms of the Collateral Documents, and this Agreement, as the Collateral
Agent deems necessary or appropriate to perfect or continue the perfection of
the liens on the Collateral for the benefit of the Secured Parties.
(g) COLLATERAL AGENT ACTING THROUGH OTHERS. The Collateral
Agent may perform any of its duties under this Agreement and the Collateral
Documents by or through attorneys (which attorneys may be the same attorneys who
represent any Secured Party), agents or other persons reasonably deemed
appropriate by the Collateral Agent. In addition, the Collateral Agent may act
in good faith reliance upon the opinion or advice of attorneys, accountants and
other experts selected by the Collateral Agent, and any action so taken in such
good faith reliance shall be authorized and protected. In all cases the
Collateral Agent may pay customary and reasonable compensation to all such
attorneys, agents or other persons as may be
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employed in connection with the performance of its duties under this Agreement
and the Collateral Documents.
(h) RESIGNATION AND REMOVAL OF COLLATERAL AGENT.
(i) The Collateral Agent (A) may resign at any time upon
notice to the Secured Parties, (B) may be removed at any time upon the written
request of the Required Secured Parties sent to the Collateral Agent and the
other Secured Parties and (C) shall resign at any time when it may not legally
act as agent for the Secured Parties hereunder.
(ii) If the Collateral Agent shall resign or be removed,
the Trustee shall have the right to select and appoint a replacement Collateral
Agent that meets the requirements of clause (v) below by notice to the
Collateral Agent and the other Secured Parties.
(iii) Upon any replacement of the Collateral Agent, the
Collateral Agent shall assign all of the liens upon and security interests in
all Collateral under the Collateral Documents, and all right, title and interest
of the Collateral Agent under all the Collateral Documents, to the replacement
Collateral Agent, without recourse to the Collateral Agent or any Secured Party,
and transfer and pay over to the replacement Collateral Agent all moneys and
other properties held by the Collateral Agent hereunder, all at the expense of
the Company.
(iv) No resignation or removal of the Collateral Agent
shall become effective until a replacement Collateral Agent shall have been
selected as provided herein and shall have assumed in writing the obligations of
the Collateral Agent hereunder and under the Collateral Documents. In the event
that a replacement Collateral Agent shall not have been selected and appointed
as provided in clause (h)(ii) and have assumed such obligations within 30 days
after notice of the resignation or removal of the Collateral Agent, then the
Collateral Agent may select and appoint for and on behalf of the Secured Parties
a replacement Collateral Agent so long as such replacement Collateral Agent
meets the requirements of clause (h)(v) or in its sole discretion may apply to
any court of competent jurisdiction to select and appoint a successor Collateral
Agent to act until such time, if any, as a successor Collateral Agent shall have
been selected and appointed by the Trustee as provided in clause (h)(ii). Any
successor Collateral Agent appointed by the Collateral Agent or such court as
provided above shall immediately and without further act be superseded by any
successor Collateral Agent appointed by the Trustee as provided in
clause (h)(ii).
(v) Any replacement Collateral Agent shall be a bank
trust company, or insurance company having capital, surplus and undivided
profits of at least $100 million, the replacement of the Collateral Agent by
such replacement Collateral Agent shall not violate any provision of any
applicable law or create a relationship which would be in violation thereof,
and, if such replacement Collateral Agent shall have been selected by the
Trustee pursuant to clause (ii) above or by the Collateral Agent pursuant to
clause (h)(iv), the fees charged by such replacement Collateral Agent shall not
be commercially unreasonable.
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(i) INDEMNIFICATION OF COLLATERAL AGENT. The Company, by its
consent hereto, hereby agrees to indemnify and hold the Collateral Agent, its
officers, directors, employees and agents (including, but not limited to, any
attorneys acting at the direction or on behalf of the Collateral Agent) harmless
against any and all costs, claims, damages, penalties, liabilities, losses and
expenses (including, but not limited to, court costs and attorneys' fees) which
may be incurred by or asserted against the Collateral Agent or any such
officers, directors, employees and agents by reason of its status as agent
hereunder or which pertain, whether directly or indirectly, to this Agreement or
the Collateral Documents, or to any action or failure to act of the Collateral
Agent as agent hereunder, except to the extent any such action or failure to act
by the Collateral Agent constitutes gross negligence or willful misconduct. The
obligations of the Company under this Section 2(i) shall survive the payment in
full of the Secured Indebtedness and the termination of this Agreement.
(j) LIABILITY OF COLLATERAL AGENT. In the absence of gross
negligence or willful misconduct, the Collateral Agent will not be liable to any
Secured Party for any action or failure to act or any error of judgment,
negligence, mistake or oversight on its part or on the part of any of its
officers, directors, employees or agents.
(k) NO RELIANCE ON COLLATERAL AGENT. Neither the Collateral
Agent nor any of its officers, directors, employees or agents (including, but
not limited to, any attorneys acting at the direction or on behalf of the
Collateral Agent) shall be deemed to have made any representations or
warranties, express or implied, with respect to, nor shall the Collateral Agent
or any such officer, director, employee or agent be liable to any Secured Party
or responsible for (i) any warranties or recitals made by the Company in the
Collateral Documents or any other agreement, certificate, instrument or document
executed by the Company in connection therewith, (ii) the due or proper
execution or authorization of this Agreement or any Collateral Document by any
party other than the Collateral Agent, or the effectiveness, enforceability,
validity, genuineness or collectibility as against the Company of any Collateral
Document or any other agreement, certificate, instrument or document executed by
the Company in connection therewith, (iii) the present or future solvency or
financial worth of the Company, or (iv) the value, condition, existence or
ownership of any of the Collateral or the existence or perfection of any lien
upon or security interest in the Collateral (whether now or hereafter held or
granted) or the sufficiency of any action, filing, notice or other procedure
taken or to be taken to perfect, attach or vest any lien or security interest in
the Collateral. The Collateral Agent shall not be required, either initially or
on a continuing basis, to (A) make any inquiry, investigation, evaluation or
appraisal respecting, or enforce performance by the Company of, any of the
covenants, agreements or obligations of the Company under any Collateral
Document, or (B) undertake any other actions (other than actions expressly
required to be taken by it under this Agreement). Nothing in any of the
Collateral Documents, expressed or implied, is intended to or shall be so
construed as to impose upon the Collateral Agent any obligations, duties or
responsibilities except as set forth in this Agreement and therein. The
Collateral Agent shall be protected in acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram, telecopy or other paper or
document given to it by any Person reasonably and in good faith believed by it
to be genuine and correct and to have been signed or sent by such Person. The
Collateral Agent shall have no duty to inquire as to the performance or
observance of any other
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terms, covenants or conditions of any Financing Agreement. The Collateral Agent
will not be required to inspect the properties or books and records of the
Company for any purpose, including to determine compliance by the Company with
its covenants respecting the perfection of security interests.
3. LIEN PRIORITIES. The parties hereto expressly agree that,
notwithstanding the relative priority or the time of grant, creation, attachment
or perfection under applicable law of any security interests and liens, if any,
of any Secured Party upon or in any of the Collateral to secure any Secured
Indebtedness, whether such security interests and liens are now existing or
hereafter acquired or arising and whether such security interests and liens are
in or upon now existing or hereafter arising Collateral, such security interests
and liens shall be security interests of and liens in favor of the Collateral
Agent to secure the Secured Indebtedness in the priorities set forth in
Section 5 hereof.
4. CERTAIN NOTICES. The Collateral Agent and each Secured Party
agree to use their best efforts to give to the others (a) copies of any notice
of the occurrence or existence of an Event of Default sent to the Company,
simultaneously with the sending of such notice to the Company, (b) notice of the
occurrence or existence of an Event of Default of which such party has
knowledge, promptly after obtaining knowledge thereof, and (c) notice of an
Enforcement by such party, prior to commencing such Enforcement, but the failure
to give any of the foregoing notices shall not affect the validity of such
notice of an Event of Default given to the Company or create a cause of action
against or cause of forfeiture of any rights of the party failing to give such
notice or create any claim or right on behalf of any third party. The
Collateral Agent agrees to deliver to each Secured Party a copy of each notice
or other communication received by it under any Collateral Document as soon as
reasonably practicable after receipt thereof.
5. DISTRIBUTION OF PROCEEDS OF COLLATERAL AFTER ENFORCEMENT.
(a) On and after the occurrence of an Enforcement, all proceeds
of Collateral held or received by the Collateral Agent or any Secured Party
(including, without limitation, (i) any amounts received or held by any Secured
Party as a consequence of the exercise of any set-off or other appropriation of
any account or any other property of the Company and (ii) any adequate
protection payments received by any Secured Party on account of any Collateral
in any bankruptcy proceeding) shall (in the case of such proceeds received by
any Secured Party) promptly be delivered to the Collateral Agent and distributed
by the Collateral Agent as follows:
(i) First, to the Collateral Agent in the amount of any
unpaid Collateral Agent Obligations;
(ii) Next, to any Secured Parties from which an Avoided
Payment has been recovered but has not been reimbursed pursuant to this clause
(ii) in the amount of any such Avoided Payments which have not been so
reimbursed, pro rata in proportion to the respective amounts thereof;
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(iii) Next, to the extent proceeds remain, to the Lenders
and the Trustee (for itself and on behalf of the holders of the Securities) in
the amount of the aggregate Accreted Value of the Securities and the principal
amount of, and any unpaid interest on loans outstanding under the Bank Facility,
and (without duplication) any unpaid premiums or payments due upon a Repurchase
Offer due with respect to or constituting a part of, the Secured Indebtedness,
pro rata in proportion to the respective amounts thereof; and
(iv) Next, to the extent proceeds remain, to the Lenders
and the Trustee in the amount of any other unpaid Secured Indebtedness, pro rata
in proportion to the respective amounts thereof.
After the Secured Indebtedness has been finally paid in full in cash,
the balance of proceeds of the Collateral, if any, shall be paid to the Company
or as otherwise required by law.
(b) For the purposes hereof, the interest or amortized original
issue discount accrued on or constituting a part of the Secured Indebtedness
shall include interest on the Secured Indebtedness at the rate specified in the
applicable Financing Agreements from the date of filing of any proceeding under
any bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar laws irrespective of
whether or not all or any portion of any such amounts are an allowed claim
enforceable against the debtor in a case under any such law.
6. AMENDMENTS TO AGREEMENTS; ACTIONS RELATED TO COLLATERAL; OTHER
LIENS AND SECURITY INTERESTS.
(a) Each Lender agrees that, without the consent in writing of
the Trustee, it will not (i) retain or obtain the primary or secondary
obligations of any other obligor or obligors with respect to all or any part of
the Secured Indebtedness, or (ii) from and after the institution of any
bankruptcy or insolvency proceeding involving the Company, as respects the
Collateral enter into any agreement with the Company with respect to
post-petition usage of cash collateral, post-petition financing arrangements or
adequate protection.
(b) The Trustee agrees that, without the consent in writing of
the Requisite Lenders, it will not (i) retain or obtain the primary or secondary
obligations of any other obligor or obligors with respect to all or any part of
the Secured Indebtedness, or (ii) from or after the institution of any
bankruptcy or insolvency proceeding, as respects the Collateral enter into any
agreement with the Company with respect to post-petition usage of cash
collateral, post-petition financing arrangements or adequate protection.
(c) Each Secured Party agrees that it will have recourse to the
Collateral only through the Collateral Agent, that it shall have no independent
recourse thereto and that it shall refrain from exercising any rights or
remedies under the Collateral Documents which have or may have arisen or which
may arise as a result of an Event of Default or an acceleration of the
maturities of the Secured Indebtedness, except that, upon the direction of the
Required Secured Parties, any Secured Party may (but shall not be required to)
appropriate any amount of any balances held by it for the account of the Company
or any other property held or
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owing by it to or for the credit or for the account of the Company provided that
the amount appropriated is delivered to the Collateral Agent for application
pursuant to Section 5 hereof. Without such direction, no Secured Party shall
set-off or appropriate any such amount.
(d) Nothing contained in this Agreement shall (i) prevent any
Secured Party from imposing a default rate of interest in accordance with the
applicable Financing Agreement, or prevent a Secured Party from raising any
defenses or counterclaims in any action in which it has been made a party
defendant or has been joined as a third party, except that the Collateral Agent
may direct and control any defense directly relating to the Collateral or any
one or more of the Collateral Documents as directed by the Required Secured
Parties, which shall be governed by the provisions of this Agreement, or
(ii) affect or impair the right any Secured Party may have under the terms and
conditions governing the Secured Indebtedness to accelerate and demand repayment
of such Secured Indebtedness. Subject only to the express limitations set forth
in this Agreement, each Secured Party retains the right to exercise freely its
rights and remedies as a creditor of the Company in accordance with applicable
law and agreements with the Secured Parties, including, without limitation, the
right to file a lawsuit and obtain a judgment therein against the Company and to
enforce such judgment against any assets of the Company.
(e) Subject to the provisions set forth in this Agreement and
the Financing Agreements, each Secured Party and its affiliates may (without
having to account therefor to any Secured Party) own, sell, acquire and hold
equity and debt securities of the Company, or any affiliate thereof, and lend
money to and generally engage in any kind of business with the Company, and
subject to the provisions of this Agreement, the Secured Parties and their
affiliates may accept dividends, interest, principal payments, fees and other
consideration from the Company for services in connection with this Agreement or
otherwise without having to account of the same to the other Secured Parties.
7. ACCOUNTING; ADJUSTMENTS.
(a) Each of the Collateral Agent and each Secured Party agrees
to render an accounting to any of the others of the amounts of the outstanding
Secured Indebtedness, receipts of payments from the Company or from the
Collateral and of other items relevant to the provisions of this Agreement upon
the reasonable request from one of the other Secured Parties as soon as
reasonably practicable after such request, giving effect to the application of
payments and the proceeds of Collateral as hereinbefore provided in this
Agreement.
(b) Each party hereto agrees that to the extent any payment of
Secured Indebtedness made to it hereunder is in excess of the amount due to be
paid to it hereunder, then it shall pay to the other parties hereto such amounts
so that, after giving affect thereto, the amount received by such party is not
in excess of the amount to be paid to it hereunder. Notwithstanding the
foregoing, the Trustee shall not be liable to return any such excess amount paid
to it if such excess amount has been distributed by it if the holders of the
Securities prior to the time the Trustee received notice of the payment of such
excess amount; provided, however,
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that, in such event, no further distributions shall be made to the Trustee
pursuant to Section 5 hereof until distributions shall thereafter have been made
to the other Lenders pursuant to Section 5 in an aggregate amount equal to such
excess amount.
8. NOTICES. Except as otherwise expressly provided herein, any
notice required or desired to be served, given or delivered hereunder shall be
in writing, and shall be deemed to have been validly served, given or delivered
five (5) days after deposit in the United States mails, with proper postage
prepaid, one business day after delivery to a courier for next day delivery,
upon delivery by courier or upon transmission by telex, telecopy or similar
electronic medium (provided that a copy of any such notice sent by such
transmission is also sent by one of the other means provided hereunder within
one day after the date sent by such transmission) to the addresses set forth
below the signatures hereto, with a copy to any person or persons set forth
below such signature shown as to receive a copy, or to such other address as any
party designates to the others in the manner herein prescribed; PROVIDED that
notices or other communications to the Collateral Agent and the Trustee shall be
effective body upon receipt. Any party giving notice to any other party
hereunder shall also give copies of such notice to all other parties.
9. CONTESTING LIENS OR SECURITY INTERESTS; NO PARTITIONING OR
MARSHALLING OF COLLATERAL; CONTESTING SECURED INDEBTEDNESS.
(a) No Secured Party shall contest the validity, perfection,
priority or enforceability of, or seek to avoid, have declared fraudulent or
have put aside any lien or security interest granted to the Collateral Agent in
compliance with the Indenture and the Pledge Agreement and each party hereby
agrees to cooperate in the defense of any action contesting the validity,
perfection, priority or enforceability of such liens or security interests.
Each party shall also use its best efforts to notify the other parties of any
change in the location of the business operations of the Company of any change
in law which would make it necessary or advisable to file additional financing
statements in another location against the Company with respect to the liens and
security interests intended to be created by the Collateral Documents, but the
failure to do so shall not create a cause of action against the party failing to
give such notice or create any claim or right on behalf of any other party
hereto or any third party.
(b) Notwithstanding anything to the contrary in this Agreement
or in any Collateral Document, no Secured Party shall have the right to have any
of the Collateral partitioned, or to file a complaint or institute any
proceeding at law or in equity to have any of the Collateral or any such
security interest or other property partitioned, and each Secured Party hereby
waives any such right. Each Secured Party hereby waives any and all rights to
have the Collateral, or any part thereof, marshaled upon any foreclosure of any
of the liens or security interests securing the Secured Indebtedness.
(c) No Secured Party shall contest the validity or
enforceability of or seek to avoid, have declared fraudulent or have set aside
any Secured Indebtedness incurred in compliance with the Indenture. In the
event any such Secured Indebtedness is invalidated, avoided, declared fraudulent
or set aside for the benefit of the Company, the Secured Parties
11
agree that such Secured Indebtedness shall nevertheless be considered to be
outstanding for all purposes of this Agreement.
10. NO ADDITIONAL RIGHTS FOR THE COMPANY HEREUNDER. The Company, by
its consent hereto, acknowledges that it shall have no rights under this
Agreement. If the Collateral Agent or any Secured Party shall violate the terms
of this Agreement, the Company agrees, by its consent hereto, that it shall not
use such violation as a defense to any enforcement by any such party of any
obligations of the Company nor assert such violation as a counterclaim or basis
for set-off or recoupment against any such party.
11. BANKRUPTCY PROCEEDINGS. Except as provided in Section 6 hereof,
nothing contained herein shall limit or restrict the independent right of any
Secured Party to initiate an action or actions in any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar proceeding in its individual capacity and
to appear or be heard on any matter before the bankruptcy or other applicable
court in any such proceeding, including, without limitation, with respect to any
question concerning the post-petition usage of Collateral and post-petition
financing arrangements. The Collateral Agent, acting in such capacity, is not
entitled to initiate such actions on behalf of any Secured Party or to appear
and be heard on any matter before the bankruptcy or other applicable court in
any such proceeding as the representative of any Secured Party. The Collateral
Agent is not authorized in any such proceeding to enter into any agreement for,
or give any authorization or consent with respect to, the post-petition usage of
Collateral, unless such agreement, authorization or consent has been approved in
writing by the Requisite Securityholders and the Requisite Lenders. This
Agreement shall survive the commencement of any such bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar proceeding.
12. INDEPENDENT CREDIT INVESTIGATION. Neither the Collateral Agent
nor any Secured Party, nor any of their respective directors, officers, agents
or employees, shall be responsible to any of the others for the solvency or
financial condition of the Company or the ability of the Company to repay any of
the Secured Indebtedness, or for the value, sufficiency, existence or ownership
of any of the Collateral, the perfection or vesting of any lien or security
interest, or the statements of the Company, oral or written, or for the
validity, sufficiency or enforceability of any of the Secured Indebtedness, any
Financing Agreement, any Collateral Document, any document, instrument or
agreement executed or delivered in connection with or pursuant to any of the
foregoing, or the liens or security interests granted by the Company in
connection therewith. Each Secured Party has entered into its respective
financial agreements with the Company based upon its own independent
investigation, and makes no warranty or representation to the other, nor does it
rely upon any representation by any of the others, with respect to the matters
identified or referred to in this Section 12.
13. SUPERVISION OF OBLIGATIONS. Except to the extent otherwise
expressly provided herein, each Secured Party shall be entitled to manage and
supervise the obligations of the Company to it in accordance with applicable law
and such Secured Party's practices in effect from time to time without regard to
the existence of any other Secured Party.
12
14. TURNOVER OF COLLATERAL. If any Secured Party (other than the
Collateral Agent) acquires custody, control or possession of any Collateral or
any proceeds thereof other than pursuant to the terms of this Agreement, such
Secured Party shall promptly cause such Collateral or the proceeds thereof to be
delivered to or put in the custody, possession or control of the Collateral
Agent for disposition and distribution in accordance with the provisions of
Section 5 of this Agreement. Until such time as such Secured Party shall have
complied with the provisions of the immediately preceding sentence, such Secured
Party shall be deemed to hold such Collateral and the proceeds thereof in trust
for the parties entitled thereto under this Agreement.
15. AMENDMENT. An amendment, supplement, modification, restatement
or waiver hereof shall be effective if, and only if, consented to in writing by
the Requisite Securityholders (or the Trustee on their behalf) and the Requisite
Lenders (or any agent on their behalf); PROVIDED, HOWEVER, that no such
amendment, supplement, modification, restatement, waiver or consent which could
reasonably be expected to adversely affect any of the Collateral Agent's rights,
immunities or indemnities hereunder or which could reasonably be expected to
impose any additional responsibilities upon the Collateral Agent shall be
effective without the written consent of the Collateral Agent; and PROVIDED,
FURTHER, that no such amendment, supplement, modification restatement, waiver or
consent shall be effective (i) against the Trustee or any holder of Securities
unless it has been consented to in compliance with all of the terms and
provisions of the Indenture or (ii) against any Lender unless it has been
consented to in compliance with all of the terms and provisions of the
applicable Financing Agreements.
16. SUCCESSORS AND ASSIGNS; REFINANCINGS.
(a) This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of each of the parties hereof,
including subsequent holders of the Secured Indebtedness, provided that (i) no
Lender shall assign or transfer any interest in any Secured Indebtedness under a
Bank Facility unless such transfer or assignment is made subject to this
Agreement and the applicable transferee or assignee becomes a signatory to this
Agreement and assumes the obligations of the transferor or assignor hereunder
with respect to the Secured Indebtedness so assigned from and after the time of
such transfer or assignment, and (ii) the appointment of any replacement
Collateral Agent shall be subject to the provisions of Section 2(h) hereof.
(b) In the event of any refinancing of the respective extensions
of credit provided by any Bank Facility or the Securities, then the Person or
Persons providing such refinancing or a trustee or agent therefor (the
"Refinancing Person") may succeed to the rights hereunder of the Person or
Persons whose credit extension is being refinanced (the "Refinanced Person")
with respect to the Secured Indebtedness being refinanced, and the indebtedness
being provided by such refinancing may become Secured Indebtedness entitled to
the benefits of the liens and security interests in the Collateral pursuant to
the Collateral Documents, subject to the provisions hereof, provided that (i)
the Refinancing Person becomes a signatory to this Agreement and assumes the
obligations of the Refinanced Person with respect to the Secured Indebtedness
being refinanced by executing and delivering to the Secured Parties a
counterpart of
13
this Agreement, (ii) the principal amount of the credit available at any time
under such refinancing shall not exceed the principal amount of the outstanding
Secured Indebtedness being refinanced at the time of such refinancing plus the
amount of any prepayment premium and expenses reasonably incurred by the Company
in connection with such refinancing (PROVIDED, HOWEVER, that nothing contained
in this paragraph (b) shall limit the right of the Company to incur indebtedness
pursuant to a Permitted Bank Facility in accordance with the Indenture).
17. LIMITATION RELATIVE TO OTHER AGREEMENTS. Nothing contained in
this Agreement is intended to impair, as between any Secured Party and the
Company, the rights of such Secured Party and the obligations of the Company
under the Financing Agreements between the Company and such Secured Party.
18. COUNTERPARTS. This Agreement may be executed in several
counterparts and by each party on a separate counterpart, each of which, when so
executed and delivered, shall be an original, but all of which together shall
constitute but one and the same instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAW.
20. INDENTURE TRUSTEE. Each of the other parties to this Agreement
acknowledges that the Trustee is entering into this Agreement in its capacity as
Trustee under the Indenture and not in its individual capacity.
21. TERMINATION. This Agreement shall terminate automatically on the
91st day following the payment in full of the Secured Indebtedness; PROVIDED,
HOWEVER, that SECTION 2(i) of this Agreement shall survive, and remain operative
and in full force and effect, regardless of the termination of this Agreement.
22. REPRESENTATIONS AND WARRANTIES. Each of the Collateral Agent,
the Trustee, the Lenders and the Company represents and warrants to the other
parties hereto that (a) the execution, delivery and performance of this
Agreement (i) has been duly authorized by all requisite corporate, partnership
or other action on its part and (ii) will not contravene any provision of its
charter or bylaws or any order of any court or other governmental authority
applicable to it, and (b) this Agreement has been duly executed and delivered by
it and constitutes its legal, valid and binding obligation.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
MARINE MIDLAND BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address for notices:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Corporate Trust Administration
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Address for notices:
Bankers Trust Company
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
VANGUARD CELLULAR FINANCIAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address for notices:
Vanguard Cellular Financial Corporation
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
TORONTO DOMINION INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address for notices:
Toronto Dominion Investments, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
---------------------------------------
[Type or Print Name of Lender]
By:
------------------------------------
Name:
Title:
Address for notices:
Acknowledged and consented to:
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
INTERNATIONAL WIRELESS
COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
SIGNATURE PAGE TO INTERCREDITOR AGREEMENT
