Exhibit 10.30D
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "AGREEMENT") is made and entered into as of
January 23, 1998 by INTERNATIONAL WIRELESS COMMUNICATIONS, INC., a Delaware
corporation (the "COMPANY"), in favor of BT FOREIGN INVESTMENT CORPORATION,
in its capacity as collateral agent under the Note Purchase Agreement, as
hereinafter defined (in such capacity, the "COLLATERAL AGENT").
W I T N E S S E T H:
WHEREAS, the Purchasers, as defined in the Note Purchase Agreement, are
committed to extending a credit facility (the "CREDIT FACILITY") to RADIO
MOVIL DIGITAL AMERICAS, INC., a Delaware corporation (the "BORROWER"),
provided that, among other things, the Company secures performance of the
Borrower's obligations relating to the Credit Facility by pledging all of the
Company's right, title and interest in (i) all of the issued and outstanding
shares of Borrower that the Company now owns, as set forth on SCHEDULE I
hereto, and acquires during the term of the Credit Facility and while any of
the Secured Indebtedness is outstanding (the "PLEDGED SHARES") and (ii) loans
and advances now made to Borrower, and all such loans and advances made
during the term of the Credit Facility and while any of Secured Indebtedness
is outstanding (the "PLEDGED LOANS");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following
terms shall have the meanings set forth below:
(a) The term "CAPITAL STOCK" as used herein shall mean any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock.
(b) The term "EQUITY INTERESTS" as used herein shall mean (i)
Capital Stock and (ii) all warrants, options or other rights to acquire
Capital Stock.
(c) The term "NOTE PURCHASE AGREEMENT" as used herein shall mean the
Amended and Restated Senior Secured Note Purchase Agreement, dated as of the
date hereof, by and among International Wireless Communications Holdings,
Inc., the Borrower and the Collateral Agent and the Purchasers, as defined
therein, as amended, supplemented, extended and modified from time to time
during the term hereof.
(d) The term "SECURED INDEBTEDNESS" as used herein shall mean the
Obligations, as defined in the Note Purchase Agreement.
(e) The term "SECURED PARTIES" as used herein shall mean the
Collateral Agent for itself and on behalf of the Purchasers.
1
(f) Other capitalized terms not defined herein which are defined in
the Note Purchase Agreement shall have the meanings ascribed thereto in the
Note Purchase Agreement.
2. PLEDGE. The Company hereby pledges to the Collateral Agent, on
behalf of and for the benefit of the Secured Parties, and grants to the
Collateral Agent, on behalf of and for the benefit of the Secured Parties, a
continuing first priority security interest in all of its right, title and
interest in the following (the "COLLATERAL"):
(a) the Pledged Shares described in SCHEDULE I hereto and the
certificates representing the Pledged Shares, and all products and proceeds
of any of the Pledged Shares, including, without limitation, all dividends,
cash, options, warrants, rights, instruments, subscriptions and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged Shares
or any of the foregoing; and
(b) all additional shares of, and all securities convertible into
and all warrants, options or other rights to purchase, Capital Stock of, or
other Equity Interests in, the Borrower from time to time acquired by the
Company in any manner, and the certificates representing such additional
shares and Equity Interests (any such additional shares and Equity Interests
and other items shall constitute part of the Pledged Shares under and as
defined in this Agreement), and all products and proceeds of any of the
foregoing, including, without limitation, all dividends, cash, options,
warrants, rights, instruments, subscriptions, and other proceeds from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing; and
(c) the Pledged Loans and all notes and other instruments
representing the Pledged Loans, and all products and proceeds of the Pledged
Loans, including, without limitation, all interest, principal and premium
payments, and all instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Pledged Loans or any of the foregoing; and
(d) all additional loans and advances from time to time made by the
Company to the Borrower and held by the Company in any manner (any such
additional loans and advances shall constitute part of the Pledged Loans
under and as defined in this Agreement) and all products and proceeds of any
of such additional Pledged Loans, including, without limitation, all interest
and principal payments, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such additional Pledged Loans or any of the foregoing.
3. SECURITY FOR OBLIGATIONS. This Agreement secures the prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration, by repurchase or otherwise) of all Secured Indebtedness
(including, without limitation, the obligations accruing after the date of
any filing by the Company of any petition in bankruptcy or the commencement
of any bankruptcy, insolvency or similar proceeding with respect to the
Company).
2
4. DELIVERY OF COLLATERAL. The Company hereby agrees that all
certificates, notes or instruments representing or evidencing the Collateral
shall be immediately delivered to and held at all times by the Collateral
Agent pursuant hereto at the Collateral Agent's office in the State of New
York and shall be in suitable form for transfer by delivery, or issued in the
name of the Company and accompanied by instruments of transfer or assignment
duly executed in blank and undated, and in either case having attached
thereto all requisite federal or state stock transfer tax stamps, all in form
and substance satisfactory to the Collateral Agent. All securities and all
Pledged Loans, whether certificated, uncertificated or book entry, if any,
representing or evidencing the Collateral shall be registered in the name of
the Collateral Agent or any of its nominees by book entry or in any other
appropriate manner that is acceptable to the Collateral Agent, so as to
properly identify the interest of the Collateral Agent therein. In addition,
the Collateral Agent shall have the right, at any time following the
occurrence of an Event of Default, in its discretion, to transfer to or to
register in the name of the Collateral Agent or any of its nominees or agents
any or all of the Collateral. The Collateral Agent shall have the right at
any time to exchange certificates, notes or other instruments representing or
evidencing all or any portion of the Collateral for certificates, notes or
other instruments of smaller or larger denominations or principal amounts in
the same aggregate amount.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
that:
(a) The execution, delivery and performance by the Company of this
Agreement are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or bylaws of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company, or result in the creation or imposition of any Lien on any
assets of the Company, other than the Lien contemplated hereby.
(b) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(c) The Pledged Shares constitute all of the authorized, issued and
outstanding capital stock of the Borrower.
(d) Each Pledged Loan has been duly authorized and entered into by
the Borrower and constitutes a legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms.
(e) The Company is the legal, record and beneficial owner of the
Collateral, free and clear of any Lien or claims of any Person except for the
security interest created by this Agreement.
3
(f) The Company has full power and authority to enter into this
Agreement and has the right to vote, pledge and grant a security interest in
the Collateral as provided by this Agreement, as applicable.
(g) This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(h) Upon the delivery to the Collateral Agent of the Collateral to
the extent that the Collateral consists of certificates, notes and other
instruments and the filing of a Uniform Commercial Code ("UCC") financing
statement with the California Secretary of State's office, the pledge of the
Collateral pursuant to this Agreement creates a valid and perfected first
priority security interest in the Collateral, securing the payment of the
Secured Indebtedness for the benefit of the Secured Parties, and is
enforceable as such against all creditors of the Company and any Persons
purporting to purchase any of the Collateral from the Company.
(i) Except as has been already obtained, no consent of any other
Person and no consent, authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required either (i) for the pledge by the Company of the Collateral pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by the Company or (ii) for the exercise by the Collateral Agent of
the voting or other rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement (except as may be
required in connection with such disposition by laws affecting the offering
and sale of securities).
(j) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best knowledge of
the Company, threatened by or against the Company or against any of its
properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby.
(k) The pledge of the Collateral pursuant to this Agreement is not
prohibited by any applicable law or governmental regulation, release,
interpretation or opinion of the Board of Governors of the Federal Reserve
System or other regulatory agency (including, without limitation, Regulations
G, T, U and X of the Board of Governors of the Federal Reserve System).
(l) All information set forth herein relating to the Collateral is
accurate and complete in all material respects.
6. FURTHER ASSURANCE. The Company will at all times cause the security
interests granted pursuant to this Agreement to constitute valid perfected
first priority security interests in the Collateral, enforceable as such
against all creditors of the Company and (except as otherwise specifically
provided herein) any Persons purporting to purchase any Collateral from the
Company. The Company will, promptly upon request by the Collateral Agent,
execute and deliver or cause to be executed and delivered, or use its best
efforts to procure, all stock powers, proxies, tax stamps, assignments,
instruments and other documents, all in form and substance
4
satisfactory to the Collateral Agent, deliver any instruments to the
Collateral Agent and take any other actions that are necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect, continue
the perfection of, or protect the first priority of the Collateral Agent's
security interest in, the Collateral, to protect the Collateral against the
rights, claims, or interests of third persons, to enable the Collateral Agent
to exercise or enforce its rights and remedies hereunder, or otherwise to
effect the purposes of this Agreement. The Company also hereby authorizes
the Collateral Agent to file any financing or continuation statements with
respect to the Collateral without the signature of the Company to the extent
permitted by applicable law (although the Collateral Agent has no obligation
to do so). The Company will pay all costs incurred in connection with any of
the foregoing. Promptly, upon request by the Collateral Agent, the Company
will provide the Collateral Agent with all documents, instruments or
information necessary, in the sole discretion of the Collateral Agent, to
satisfy its obligations under this Agreement.
7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default or Potential Event of Default
shall have occurred and be continuing, the Company shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement; PROVIDED, HOWEVER, that the Company shall not
exercise or shall refrain from exercising any such right if such action would
violate any provisions of this Agreement or the Note Purchase Agreement.
(b) So long as no Event of Default or Potential Event of Default
shall have occurred and be continuing but subject to compliance with the
Credit Facility and the Notes, the Company shall be entitled to receive, and
to utilize free and clear of the Lien of this Agreement, all cash payments of
principal, interest and dividends paid from time to time in respect of the
Collateral so long as the Collateral Agent is provided with evidence that the
sole source of the payments in respect of the Collateral are derived from the
Latin American Non-Brazilian Entities.
(c) Any and all (i) dividends, other distributions, interest and
principal payments paid or payable in the form of instruments and/or other
property (other than cash payments permitted under Section 7(b) hereof)
received, receivable or otherwise distributed in respect of, or in exchange
for, any Collateral, (ii) dividends and other distributions paid or payable
in cash in respect of any Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (iii) cash paid, payable or otherwise
distributed in redemption of, or in exchange for any Collateral, shall, in
each case, be forthwith delivered to the Collateral Agent to hold as
Collateral and shall be, if received by the Company, held in trust for the
benefit of the Collateral Agent and the Secured Parties, be segregated from
the other property and funds of the Company and be forthwith delivered to the
Collateral Agent as Collateral in the same form as so received (with any
necessary endorsements) and may, in the Collateral Agent's sole discretion,
be applied to repayment of the Secured Indebtedness in accordance with
Section 17 hereof.
5
(d) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to the Company all such proxies and other instruments
as the Company may reasonably request for the purpose of enabling the Company
to exercise the voting and other rights that it is entitled to exercise
pursuant to Section 7(a) and 7(b) above.
(e) Upon the occurrence and during the continuance of an Event of
Default or Potential Event of Default, (i) all rights of the Company to
exercise the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 7(a) shall cease, and all such
rights shall there upon become vested in the Collateral Agent, which, to the
extent permitted by law, shall there upon have the sole right to exercise
such voting and other consensual rights, and (ii) all cash payments and other
distributions payable in respect of the Collateral shall be paid to the
Collateral Agent and the Company's right to receive such cash payments
pursuant to Section 7(b) hereof shall immediately cease.
(f) Upon the occurrence and during the continuance of an Event of
Default or a Potential Event of Default, the Company shall execute and
deliver (or cause to be executed and delivered) to the Collateral Agent all
such proxies, dividend payment orders and other instruments as Collateral
Agent may reasonably request for the purpose of enabling the Collateral Agent
to exercise the voting and other rights that it is entitled to exercise
pursuant to Section 7(e) above.
(g) All payments of interest, principal or premium and all dividends
and other distributions that are received by the Company contrary to the
provisions of this Section 7 shall be received in trust for the benefit of
the Collateral Agent and the Secured Parties, shall be segregated from the
other property or funds of the Company and shall be forthwith delivered to
the Collateral Agent as Collateral in the same form as so received (with any
necessary endorsements).
8. COVENANTS. The Company covenants and agrees, from and after the date
of this Agreement and until the Secured Indebtedness has been paid in full,
as follows:
(a) The Company agrees that it will not (i) sell, assign, transfer,
convey or otherwise dispose of, or grant any option or warrant with respect
to, any of the Collateral without the prior written consent of the Collateral
Agent, (ii) create or permit to exist any Lien upon or with respect to any of
the Collateral, except for the security interest granted under this
Agreement, and at all times will be the sole beneficial owner of the
Collateral, (iii) enter into any agreement or understanding that purports to
or that may restrict or inhibit the Collateral Agent's rights or remedies
hereunder, including, without limitation, the Collateral Agent's right to
sell or otherwise dispose of the Collateral, (iv) take any action, or permit
the taking of any action by the Borrower, with respect to the Collateral the
taking of which would result in a violation of the Note Purchase Agreement or
this Agreement, including, without limitation, the issuance by the Borrower
of any additional Equity Interests to Persons other than the Company (except
as permitted by the Note Purchase Agreement), (v) permit the Borrower to
merge or consolidate with or into another Person or sell or transfer all or
substantially all of its assets to another Person to the extent that such
merger, consolidation, sale or transfer is prohibited under the Note
6
Purchase Agreement, or (vii) fail to pay or discharge any tax, assessment or
levy of any nature not later than five days prior to the date of any proposed
sale under any judgment, writ or warrant of attachment with regard to the
Collateral.
(b) The Company agrees that immediately upon becoming the beneficial
owner of any additional shares of Capital Stock or other securities or Equity
Interests of the Borrower (including as a result of the merger or
consolidation of the Borrower with or into another Person) or any additional
Pledged Loans, whether or not evidenced by notes or other instruments, it
will pledge and deliver to the Collateral Agent for its benefit and the
ratable benefit of the Secured Parties and grant to the Collateral Agent for
its benefit and the ratable benefit of the Secured Parties, a continuing
first priority security interest in such shares, other securities, Equity
Interests or Pledged Loans (as well as instruments of transfer or assignment
duly executed in blank and undated and any necessary stock transfer tax
stamps, all in form and substance satisfactory to the Collateral Agent).
9. POWER OF ATTORNEY. In addition to all of the powers granted to the
Collateral Agent pursuant to the Note Purchase Agreement, the Company hereby
appoints and constitutes the Collateral Agent as the Company's
attorney-in-fact to exercise all of the following powers upon and at any time
after the occurrence of an Event of Default or, with respect to Section 7
hereof, a Potential Event of Default: (i) collection of proceeds of any
Collateral; (ii) conveyance of any item of Collateral to any purchaser
thereof; (iii) giving of any notices or recording of any Liens under Section
6 hereof; (iv) making of any payments or taking any acts under Section 10
hereof; and (v) paying or discharging taxes or Liens levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by the Collateral
Agent in its sole discretion, and such payments made by the Collateral Agent
to become the obligations of the Company to the Collateral Agent, due and
payable immediately without demand. The Collateral Agent's authority
hereunder shall include, without limitation, the authority to endorse and
negotiate, for the Collateral Agent's own account, any checks or instruments
in the name of the Company, execute and give receipt for any certificate of
ownership or any document, transfer title to any item of Collateral, sign the
Company's name on all financing statements or any other documents deemed
necessary or appropriate to preserve, protect or perfect the security
interest in the Collateral and to file the same, prepare, file and sign the
Company's name on any notice of Lien, and prepare, file and sign the
Company's name on a proof of claim in bankruptcy or similar document against
any creditor of the Company, and to take any other actions arising from or
incident to the powers granted to the Collateral Agent in this Agreement.
This power of attorney is coupled with an interest and is irrevocable by the
Company.
10. COLLATERAL AGENT MAY PERFORM. If the Company fails to perform any
agreement contained herein, the Collateral Agent may itself perform, or cause
the performance of, such agreement, and the reasonable expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Company under Section 15 hereof; PROVIDED, HOWEVER, that the Collateral Agent
shall not be obligated to take any action under this Section 10 unless it is
instructed to do so by the Purchasers and it is indemnified against any
liability or loss in connection with taking such action by the Purchasers.
7
11. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The right and powers
granted to the Collateral Agent hereunder are being granted in order to
preserve and protect the Collateral Agent's and the Secured Parties' security
interest in and to the Collateral granted hereby and shall not be interpreted
to, and shall not, impose any duties on the Collateral Agent in connection
therewith. The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property, it being understood that the
Collateral Agent shall not have any responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not the
Collateral Agent has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any parties with
respect to any Collateral.
12. SUBSEQUENT CHANGES AFFECTING COLLATERAL. The Company represents to
the Collateral Agent and the Secured Parties that the Company has made its
own arrangements for keeping informed of changes or potential changes
affecting the Collateral (including, but not limited to, rights to convert,
rights to subscribe, payment of dividends, payments of interest and/or
principal, reorganization or other exchanges, tender offers and voting
rights), and the Company agrees that the Collateral Agent and the Secured
Parties shall have no responsibility or liability for informing the Company
of any such changes or potential changes or for taking any action or omitting
to take any action with respect thereto. The Company covenants that it will
not, without the prior written consent of the Collateral Agent, vote to
enable, or take any other action to permit, the Borrower to issue any capital
stock or other securities or to sell or otherwise dispose of, or grant any
option with respect to, any of the Collateral, except for the security
interests granted under this Agreement. The Company will defend the right,
title and interest of the Collateral Agent and the Secured Parties in and to
the Collateral against the claims and demands of all Persons.
13. REMEDIES UPON DEFAULT
(a) If any Event of Default shall have occurred and be continuing,
the Collateral Agent and the Secured Parties shall have, in addition to all
other rights given by law or by this Agreement or the Note Purchase
Agreement, all of the rights and remedies with respect to the Collateral of a
secured party under the UCC as in effect in the State of New York at that
time. The Collateral Agent may, without notice and at its option, transfer or
register, and the Company shall register or cause to be registered upon
request therefor by the Collateral Agent, the Collateral or any part thereof
on the books of the Borrower into the name of the Collateral Agent or the
Collateral Agent's nominee(s) or agent(s), with or without any indication
that such Collateral is subject to the security interest hereunder. In
addition, with respect to any Collateral that shall then be in or shall
thereafter come into the possession or custody of the Collateral Agent, the
Collateral Agent may sell or cause the same to be sold at any broker's board
or at a public or private sale, in one or more sales or lots, at such price
or prices as the Collateral Agent may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk. The purchaser of any
or all Collateral so sold shall thereafter hold the same absolutely, free
from
8
any claim, encumbrance or right of any kind whatsoever. Unless any of the
Collateral threatens to decline speedily in value or is or becomes of a type
sold on a recognized market, the Collateral Agent will give the Company
reasonable notice of the time and place of any public sale thereof, or of the
time after which any private sale or other intended disposition is to be
made. Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial finance
companies, or other financial institutions disposing of property similar to
the Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to
the Company as provided below in Section 19.1, at least ten days before the
time of the sale or disposition. Any other requirement of notice, demand or
advertisement for sale is, to the extent permitted by law, waived. The
Collateral Agent or any Secured Party may, in its own name or in the name of
a designee or nominee, buy any of the Collateral at any public sale and, if
permitted by applicable law, at any private sale. All expenses (including
court costs and reasonable attorneys' fees and disbursements) of, or incident
to, the enforcement of any of the provisions hereof shall be recoverable from
the proceeds of the sale or other disposition of the Collateral.
(b) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Collateral
may be effected after an Event of Default, the Company agrees that upon the
occurrence or existence of any Event of Default, the Collateral Agent may,
from time to time, attempt to sell all or any part of the Collateral by means
of a private placement, restricting the prospective purchasers to those who
will represent and agree that they are purchasing for investment only and not
for distribution. In so doing, the Collateral Agent may solicit offers to
buy the Collateral, or any part of it, for cash, from a limited number of
investors who might be interested in purchasing the Collateral. The Company
acknowledges and agrees that any such private sale may result in prices and
terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall
not be deemed to have been made in a commercially unreasonable manner. The
Collateral Agent shall be under no obligation to delay a sale of any of the
Collateral for the period of time necessary to permit the Borrower to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if the Borrower agrees to do so.
(c) The Company further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this Section 13
valid and binding and in compliance with any and all other applicable
requirements of law. The Company further agrees that a breach of any of the
covenants contained in this Section 13 will cause irreparable injury to the
Collateral Agent and the Secured Parties, that the Collateral Agent and the
Secured Parties have no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section 13
shall be specifically enforceable against the Company, and the Company hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default
has occurred.
(d) If the Collateral Agent deems it appropriate, the Collateral
Agent shall retain an investment bank or any other agent to perform or to
assist it in performing the
9
obligations set forth in Section 13(b) hereof, whose usual and customary fees
and expenses shall be paid by the Company in accordance with Section 15
hereof.
14. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO THE BORROWER. The
Company hereby authorizes and instructs the Borrower to comply with any
instruction received by the Borrower from the Collateral Agent that (i)
states that an Event of Default has occurred and (ii) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from the Company, and the Company agrees that the Borrower shall
be fully protected in so complying.
15. FEES AND EXPENSES. The Company will upon demand pay to the
Collateral Agent the amount of any and all reasonable fees and expenses
(including, without limitation, the reasonable fees and disbursements of its
counsel, of any investment banking firm, business broker or other selling
agent and of any other experts and agents retained by the Collateral Agent)
that the Collateral Agent may incur in connection with (i) the administration
of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent and the
Secured Parties hereunder or (iv) the failure by the Company to perform or
observe any of the provisions hereof.
16. INTEREST ABSOLUTE. All rights of the Collateral Agent and the
Secured Parties and the security interests created hereunder, and all
obligations of the Company hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Note Purchase
Agreement or any other agreement or instrument evidencing or governing the
Secured Indebtedness;
(b) any change in the time, manner or place or payment of, or in
any other term of, all or any of the Secured Indebtedness, or any other
amendment or waiver of or any consent to any departure from the Note Purchase
Agreement;
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guarantee, for all or any of the Secured Indebtedness; or
(d) any other circumstances that might otherwise constitute a
defense available to, or a discharge of, the Company in respect of the
Secured Indebtedness or of this Agreement.
17. APPLICATION OF PROCEEDS. Upon the occurrence and during the
continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Collateral and any cash held shall
be applied by the Collateral Agent in the following order of priorities:
10
FIRST, to the Collateral Agent for the payment of the Secured
Indebtedness in the manner set forth in Section 8.6 of the Note Purchase
Agreement (which Secured Indebtedness shall include all of the expenses of
such sale or other realization, including reasonable compensation to agents
and counsel for the Collateral Agent, and all reasonable expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, and any other unreimbursed fees and expenses for which
the Collateral Agent is to be reimbursed pursuant to Section 15 hereof); and
SECOND, to payment to the Company or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
18. UNCERTIFICATED SECURITIES. Notwithstanding anything to the contrary
contained herein, if any Collateral (whether now owned or hereafter acquired)
is in the form of an uncertificated security, the Company shall promptly
notify the Collateral Agent, and shall promptly take all actions required to
perfect the security interest of the Collateral Agent under applicable law
(including, in any event, under Section 8-313 and 8-321 of the New York
Uniform Commercial Code) and shall certify to the Collateral Agent that such
security interest is perfected. The Company further agrees to take such
actions as the Collateral Agent deems necessary or desirable to effect the
foregoing and to permit the Collateral Agent to exercise any of its rights
and remedies hereunder, and agrees to provide an Opinion of Counsel
satisfactory to the Collateral Agent with respect to any such pledge of
uncertificated Collateral promptly upon request of the Collateral Agent.
19. MISCELLANEOUS PROVISIONS.
19.1 NOTICES. All notices, demands, and other communications required or
desired to be given hereunder shall be in writing and shall be deemed to have
been given when delivered personally to the recipient, sent to the recipient
by reputable overnight courier service (charges prepaid) or mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications shall be sent
to the Collateral Agent and to each Purchaser at the addresses set forth in
Section 8.13 of the Note Purchase Agreement and to the Company at the address
indicated below:
International Wireless Communications, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
19.2 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Agreement may
not be used to interpret another pledge, security or debt agreement of the
Company, the Borrower or any subsidiary thereof. No such pledge, security or
debt agreement may be used to interpret this Agreement.
19.3 SEVERABILITY. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such
11
invalidity or unenforceability shall affect in that jurisdiction only such
clause or provision, or part thereof, and shall not in any manner affect such
clause or provision in any other jurisdiction or any other clause or
provision of this Agreement in any jurisdiction.
19.4 NO RECOURSE AGAINST OTHERS. No director, officer, employee,
stockholder or affiliate, solely in such capacity, of the Company or the
Borrower shall have any liability for any obligations of the Company under
this Agreement or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Secured Party hereby waives and releases
all such liability.
19.5 HEADINGS. The headings of the Articles and Sections of this
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
19.6 COUNTERPART ORIGINALS. This Agreement may be signed in two or more
counterparts. Each signed copy shall be an original, but all of them
together represent one and the same agreement. Each counterpart may be
executed and delivered by telecopy, if such delivery is promptly followed by
the original manually signed copy sent by overnight courier.
19.7 BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Secured Parties, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
19.8 AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver of any
provision of this Agreement and any consent to any departure by the Company
from any provision of this Agreement shall be effective only if the Company
has obtained the written consent of the holders of a majority of the
outstanding principal amount of the Notes (which majority shall include BTFIC
as long as it holds any Notes). Failure of the Collateral Agent or any
Secured Party to exercise, or delay in exercising, any right, power or
privilege hereunder shall not operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Collateral Agent or any Secured Party of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that the Collateral Agent or such Secured Party
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
19.9 INTERPRETATION OF AGREEMENT. Time is of the essence in each
provision of this Agreement of which time is an element. To the extent a
term or provision of this Agreement conflicts with the Note Purchase
Agreement and is not dealt with herein with more specificity, the Note
Purchase Agreement shall control with respect to the subject matter of such
term or provision. Acceptance of or acquiescence in a course of performance
rendered under this Agreement shall not be relevant to determine the meaning
of this Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
12
19.10 CONTINUING SECURITY INTEREST; TRANSFER OF SECURITIES. This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the payment in full of all
the Secured Indebtedness, (ii) be binding upon the Company, its successors
and assigns, and (iii) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent, the
Secured Parties and their respective successors, transferees and assigns.
19.11 REINSTATEMENT. This Agreement shall continue to be effective or be
reinstated if at any time any amount received by the Collateral Agent or any
Secured Party in respect of the Secured Indebtedness is rescinded or must
otherwise be restored or returned by the Collateral Agent or any Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Company or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
19.12 SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of the Company contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and final
payment and performance by the Company of the Secured Indebtedness.
19.13 WAIVERS. The Company waives presentment and demand for payment of
any of the Secured Indebtedness, protest and notice of dishonor or default
with respect to any of the Secured Indebtedness, and all other notices to
which the Company might otherwise be entitled, except as otherwise expressly
provided herein.
19.14 AUTHORITY OF THE COLLATERAL AGENT.
(a) The Collateral Agent shall have and be entitled to exercise
all powers hereunder that are specifically granted to the Collateral Agent by
the terms hereof, together with such powers as are reasonably incident
thereto. The Collateral Agent may perform any of its duties hereunder or in
connection with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Neither the Collateral Agent nor any director,
officer, employee, attorney or agent of the Collateral Agent shall be
responsible for the validity, effectiveness or sufficiency hereof or of any
document or security furnished pursuant hereto. The Collateral Agent and its
directors, officers, employees, attorneys and agents shall be entitled to
rely on any communication, instrument or document believed by it or them to
be genuine and correct and to have been signed or sent by the proper person
or persons. The Company agrees to indemnify and hold harmless the Collateral
Agent, the Secured Parties and any other Person specified above from and
against any and all costs, expenses (including the reasonable fees and
disbursements of counsel (including, the allocated costs of counsel)), claims
and liabilities incurred by the Collateral Agent, the Secured Parties or any
such Person hereunder, unless such claim or liability shall be due to willful
misconduct or gross negligence on the part of the Collateral Agent, the
Secured Parties or such Person.
13
(b) The Company acknowledges that the rights and responsibilities of
the Collateral Agent under this Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Collateral Agent and the Secured Parties, be governed by the Note Purchase
Agreement and by such other agreements with respect thereto as may exist form
time to time among them, but, as between the Collateral Agent and the
Company, the Collateral Agent shall be conclusively presumed to be acting as
agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and the Company shall not be obligated or entitled to
make any inquiry respecting such authority.
19.15 RESIGNATION OR REMOVAL OF THE COLLATERAL AGENT. Until such time as
the Secured Indebtedness shall have been paid in full, the Collateral Agent
may at any time, by giving written notice to the Company and Secured Parties,
resign and be discharged of the responsibilities hereby created, such
resignation to become effective upon (i) the appointment of a successor
Collateral Agent and (ii) the acceptance of such appointment by such
successor Collateral Agent. As promptly as practicable after the giving of
any such notice, the Secured Parties shall appoint a successor Collateral
Agent, which successor Collateral Agent shall be reasonably acceptable to the
Company. If no successor Collateral Agent shall be appointed and shall have
accepted such appointment within 90 days after the Collateral Agent gives the
aforesaid notice of resignation, the Collateral Agent may apply to any court
of competent jurisdiction to appoint a successor Collateral Agent to act
until such time, if any, as a successor shall have been appointed as provided
in this Section 19.15. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor Collateral
Agent appointed by the Secured Parties, as provided in this Section 19.15.
Simultaneously with its replacement as Collateral Agent hereunder, the
Collateral Agent so replaced shall deliver to its successor all documents,
instruments, certificates and other items of whatever kind (including,
without limitation, the certificates and instruments evidencing the
Collateral and all instruments of transfer or assignment) held by it pursuant
to the terms hereof. The Collateral Agent that has resigned shall be
entitled to fees, costs and expenses to the extent incurred or arising, or
relating to events occurring, before its resignation or removal.
19.16 RELEASE OF COLLATERAL; TERMINATION OF AGREEMENT.
(a) Subject to the provisions of Section 19.11 hereof, this
Agreement shall terminate upon the full and final payment and performance of
the Secured Indebtedness (and upon receipt by the Collateral Agent of the
Company's written certification that all such Secured Indebtedness has been
satisfied) and payment in full of all fees and expenses owing by the Company
to the Collateral Agent. At such time, the Collateral Agent shall, at the
request of the Company, reassign and redeliver to the Company all of the
Collateral hereunder that has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to the
Collateral Agent, except as to the absence of any prior assignments by the
Collateral Agent of its interest in the Collateral, and shall be at the
expense of the Company.
14
(b) The Company agrees that it will not, except as permitted by the
Note Purchase Agreement, sell or dispose of, or grant any option or warrant
with respect to, any of the Collateral.
19.17 FINAL EXPRESSION. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a
final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
19.18 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
WAIVER OF DAMAGES.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER
THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
COMPANY, THE COLLATERAL AGENT AND THE SECURED PARTIES IN CONNECTION WITH THIS
AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL
BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAWS PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
(ii) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH AND IN
PARAGRAPH (vi) BELOW, THE COMPANY, THE COLLATERAL AGENT AND THE SECURED
PARTIES AGREE THAT ALL DISPUTES BETWEEN OR AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR
FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK. THE COMPANY WAIVES IN ALL
DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(iii) THE COMPANY AGREES THAT THE COLLATERAL AGENT SHALL, IN
ITS OWN NAME OR IN THE NAME AND ON BEHALF OF ANY SECURED PARTY, HAVE THE
RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE
COMPANY OR ITS PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN
GOOD FAITH TO ENABLE THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL
AGENT. THE COMPANY WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH THE COLLATERAL AGENT HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS PARAGRAPH INCLUDING,
15
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS.
(iv) THE COMPANY, THE COLLATERAL AGENT AND THE SECURED
PARTIES EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(v) THE COMPANY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE COMPANY AT ITS ADDRESS SET FORTH IN SECTION 19.1 HEREOF, SUCH SERVICE TO
BECOME EFFECTIVE FIVE (5) BUSINESS DAYS AFTER SUCH MAILING.
(vi) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT OR ANY SECURED PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY
IN ANY OTHER JURISDICTION.
(vii) THE COMPANY HEREBY AGREES THAT NEITHER THE COLLATERAL
AGENT NOR ANY SECURED PARTY SHALL HAVE ANY LIABILITY TO THE COMPANY (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE COMPANY
IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT,
OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS
DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING
ON THE COLLATERAL AGENT OR SUCH SECURED PARTY, AS THE CASE MAY BE, THAT SUCH
LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL
AGENT OR SUCH SECURED PARTY, AS THE CASE MAY BE, CONSTITUTING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(viii) THE COMPANY WAIVES ALL RIGHTS OF NOTICE AND HEARING OF
ANY KIND PRIOR TO THE EXERCISE BY THE COLLATERAL AGENT OR ANY SECURED PARTY
OF ITS RIGHTS DURING THE CONTINUANCE OF AN EVENT OF DEFAULT TO REPOSSESS THE
COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. THE COMPANY WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY SECURED
PARTY DURING THE CONTINUANCE OF AN EVENT OF DEFAULT IN CONNECTION WITH ANY
JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF,
16
REPLEVY, ATTACH OR LEVY UPON COLLATERAL OR OTHER SECURITY FOR THE
OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE COLLATERAL AGENT OR ANY SECURED PARTY, OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT
INJUNCTION THIS AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE
COMPANY, THE COLLATERAL AGENT AND THE SECURED PARTIES.
19.19 ACKNOWLEDGMENTS OF COMPANY. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship to the Company, and the relationship between the
Collateral Agent and the Secured Parties, on the one hand, and the Company,
on the other hand, is solely that of a secured party and a creditor; and
(c) no joint venture exists among the Secured Parties or among the
Company and the Secured Parties.
ACKNOWLEDGMENTS OF THE BORROWER. The Borrower, by executing the
acknowledgment and agreement below, hereby acknowledges and agrees to be
bound by this Agreement and to comply with the terms thereof insofar as such
terms are applicable to it. The Borrower, by executing the acknowledgment
and agreement below, further agrees to notify the Collateral Agent promptly
in writing of the occurrence of any of the events described in Section 8(b)
of this Agreement.
17
[Pledge Agreement Signature Page]
IN WITNESS WHEREOF, the Company and the Collateral Agent have each
caused this Agreement to be duly executed and delivered as of the date first
above written.
INTERNATIONAL WIRELESS COMMUNICATIONS,
INC., a Delaware corporation
By: _________________________________
Name:
Title:
COLLATERAL AGENT:
BT FOREIGN INVESTMENT CORPORATION,
as Collateral Agent
By: _________________________________
Name:
Title:
Reviewed, Acknowledged and Agreed to:
RADIO MOVIL DIGITAL AMERICAS, INC.,
a Delaware corporation
By: ___________________________________
Name:
Title:
18
SCHEDULE I
PLEDGED SHARES
Number of Share Percentage
Pledged Shares Certificate Number of Outstanding
-------------- ------------------ --------------
Shares 100%
19
