Exhibit 4.7(d)
SUBORDINATION AGREEMENT
This Subordination Agreement made as of November 30, 2004 between
Xxxxxx Wireless Inc. (the "Company") and JPMorgan Chase Bank, N.A., as trustee
(the "Trustee"), under the Indenture (as defined below) and JPMorgan Chase Bank,
N.A., as trustee (the "Senior Debt Trustee") under an indenture dated as of
November 30, 2004 between the Company and the Senior Debt Trustee, as trustee
for the holders of 7.25% Senior Notes due 2012 of the Company issued under such
indenture and outstanding from time to time and constituting Senior Indebtedness
(such holders being hereinafter called "holders of Senior Indebtedness").
WITNESSES THAT WHEREAS:
A. The Company and the Trustee have entered into an indenture (the
"Indenture") dated as of November 30, 2004 providing for the issuance of 8.00%
Senior Subordinated Notes due 2012 of the Company (the "Securities"); and
B. As set forth in the Indenture and in the Securities, the Holders
have authorized the execution and delivery by the Trustees of this Agreement on
their behalf;
NOW THEREFORE for value received the parties agree as follows:
1. DEFINITIONS.
A capitalized term not defined in this Agreement has the meaning
ascribed to such term in the Indenture.
2. SUBORDINATION.
The Trustee, under the authority granted to it in the Indenture and
on behalf of and as agent for all Holders of outstanding Securities, and the
Company hereby covenant with the Senior Debt Trustee in its capacity as trustee
that the indebtedness represented by the Securities and the payment of the
principal of (and premium, if any) and interest on each and all of the
Securities delivered from time to time under the Indenture thereunder are
subordinate and subject in right of payment to the prior payment in full of
Senior Indebtedness to holders of Senior Indebtedness, in the manner, to the
extent and with the same effect as if the terms and provisions of the Indenture
were set forth herein.
3. PAYMENT TO THE COMPANY IN CERTAIN CIRCUMSTANCES.
Pursuant to Section 1207 of the Indenture, if a holder of Senior
Indebtedness or the Senior Debt Trustee shall receive in such capacity any
amount under this Agreement and at the time of receipt such holder or the Senior
Debt Trustee is not entitled to (whether by reason of maturity, acceleration or
otherwise) such amount under the terms of such Senior Indebtedness, then such
holder or the Senior Debt Trustee shall turn over such amount to the Company.
Any such amount so received by any holder of Senior Indebtedness or the Senior
Debt Trustee which such holder or the Senior Debt Trustee is so required to turn
over to the Company shall in no circumstances be considered to be a payment on
account of such Senior Indebtedness.
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4. BINDING EFFECT AND INUREMENT.
This Agreement shall be binding upon the successors of the Company
and the Trustee, and enure to the benefit of the successors of the Senior Debt
Trustee in their capacity as trustees.
5. NO WAIVER OR AMENDMENT.
No provision of this Agreement may be waived or amended except by an
instrument in writing signed by the party against whom the enforcement of any
waiver or amendment is sought.
6. NO PERSONAL LIABILITY.
The Trustee and the Senior Debt Trustee make no representation or
warranty as to the validity, sufficiency or effect of this Agreement, or as to
the authority of the Trustee or the Senior Debt Trustee, as the case may be, to
execute or deliver this Agreement. The Trustee and the Senior Debt Trustee shall
have no personal responsibility or liability with respect to the covenant
contained in Section 2 hereof.
7. COUNTERPARTS
This Agreement may be executed on any number of separate
counterparts and all said counterparts taken together shall be deemed to
constitute one and the same instrument.
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8. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
XXXXXX WIRELESS INC.
By: /s/ M. Xxxxxxxx Xxxx
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M. Xxxxxxxx Xxxx
Vice-President, Treasurer
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Vice-President
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
Trust Officer
JPMORGAN CHASE BANK, N.A.,
AS SENIOR DEBT TRUSTEE
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Trust Officer
