PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of August 18, 1997 between PAKISTAN WIRELESS
HOLDINGS LIMITED, a private company formed under the laws of Mauritius (the
"PLEDGOR"), and TORONTO DOMINION INVESTMENTS, INC., as agent (in such capacity,
together with its successors in such capacity, the "AGENT") for the Lenders, as
that term is defined in the Loan Agreement dated as of the date of this
Agreement among the Pledgor and the Initial Lenders named therein (as the same
may be amended, modified, restated or supplemented from time to time, the "LOAN
AGREEMENT"). Capitalized terms used but not defined herein have the meanings
given to such terms in the Loan Agreement.
The Initial Lenders have agreed to make certain loans to the Pledgor
pursuant to, and subject to the terms and conditions specified in, the Loan
Agreement. The obligation of the Initial Lenders to lend under the Loan
Agreement are conditioned on, among other things, the execution and delivery by
the Pledgor of this Agreement.
Accordingly, the Pledgor and the Agent, on behalf of itself and the
Lenders as holders of the Obligations, hereby agree as follows:
SECTION 1. PLEDGE. As security for the timely payment and
performance in full of the obligations of the Pledgor under this Agreement and
the other Loan Documents (the "OBLIGATIONS"), the Pledgor hereby transfers,
hypothecates, pledges, sets over and delivers unto the Agent, and grants to the
Agent (for the benefit of the Lenders) a security interest in, all right, title
and interest the Pledgor now has or hereafter acquires in (a) the securities
described on the attached Schedule of Pledged Securities and all securities of
any of Pledgor's Subsidiaries or of any Investee obtained in the future by the
Pledgor and the certificates representing or evidencing all such securities (the
"PLEDGED STOCK"); (b) all other property which may be delivered to and held by
the Agent pursuant to the terms hereof; (c) all payments of principal or
interest, dividends, cash, instruments and other property or any Distribution
from time to time received, receivable or otherwise distributed in respect of,
in exchange for or upon the conversion of the securities and other property
referred to in clause (a) or clause (b) above; (d) except as provided in Section
5, all rights and privileges of the Pledgor with respect to the securities and
other property referred to in clauses (a), (b) and (c) above; and (e) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(e) being collectively called the "COLLATERAL"). Upon delivery to the Agent,
(i) any share certificates, notes or other securities or instruments now or
hereafter included in the Collateral (the "PLEDGED SECURITIES") will be duly
endorsed to the Agent or accompanied by stock powers duly executed in blank or
other instruments of transfer satisfactory to the Agent and by such other
instruments and documents as the Agent may reasonably request, and (ii) all
other property comprising part of the Collateral will be accompanied by proper
instruments of assignment duly executed by the Pledgor and such other
instruments or documents as the Agent may reasonably request. Each delivery of
Pledged Securities will be accompanied by a schedule describing the securities
theretofore and then being
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pledged hereunder, which schedule will be attached to this Agreement and made a
part hereof. Each schedule so delivered will supersede any prior schedules so
delivered.
SECTION 2. DELIVERY OF THE COLLATERAL. The Pledgor agrees to
promptly deliver or cause to be delivered to the Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Pledgor
hereby represents, warrants and covenants to and with the Agent that:
(a) except for the security interest granted hereunder, the Pledgor
(i) is and will at all times continue to be the direct owner, beneficially and
of record, of the Pledged Stock, (ii) holds the same free and clear of all
Liens, (iii) except any other Permitted Lien, will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security interest
or other Lien with respect to, the Collateral, (iv) will cause all securities
included within the Collateral to be certificated securities, and (v) will cause
any and all certificates, instruments or other documents representing or
evidencing Collateral to be forthwith deposited with the Agent and pledged or
assigned hereunder;
(b) by virtue of the execution and delivery by Pledgor of this
Agreement, when the Pledged Securities are delivered to the Agent in accordance
with this Agreement, the Agent will obtain a valid, legal and perfected first
priority lien upon and security interest in such Pledged Securities as security
for the repayment of the Obligations, free and clear of all Liens (other than
other Permitted Liens);
(c) the pledge effected hereby is effective to vest in the Agent, for
the benefit of the Agent and the Lenders, the rights of the Agent in the
Collateral as set forth herein; and
(d) the Pledgor will cause each of its Subsidiaries and each Investee
not to issue to the Pledgor any Equity Securities or other securities unless
such securities are concurrently pledged and delivered to the Agent hereunder.
SECTION 4. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. The
Agent, on behalf of the Lenders, will have the right (in its sole and absolute
discretion), to the extent permitted under the Newco Shareholders Agreement, to
hold the Pledged Securities in its own name, the name of its nominee or the name
of the Pledgor, endorsed or assigned in blank or in favor of the Agent. The
Pledgor will promptly give to the Agent copies of any notices or other
communications received by it with respect to Pledged Securities registered in
the name of the Pledgor. The Pledgor will take all actions as may be necessary
so that the Agent will at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purposes consistent with this Pledge Agreement. If, and
to the extent that, the Pledged Securities of Newco are held in the name of the
Agent or its nominee, the Agent agrees that, notwithstanding such registration
arrangement, so long as no Event of Default is continuing, Pledgor will be
entitled to exercise all rights granted to Pledgor under the Newco Shareholders
Agreement, including purchasing Newco shares owned by other Newco shareholders
in accordance with the terms of the Newco Shareholders Agreement.
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SECTION 5. VOTING RIGHTS; DIVIDENDS AND INTEREST; ETC.
(a) Except as provided in paragraphs (b) and (c) of this Section 5:
(i) The Pledgor will be entitled to exercise any and all voting
rights accruing to it as the owner of Pledged Securities for any purpose
consistent with the terms of this Agreement, the Loan Agreement and the
other Loan Documents, so long as such exercise of rights could not
reasonably be expected to adversely affect the rights and remedies of the
Agent or the Lenders under this Agreement or the other Loan Documents or
the ability of the Agent or the Lenders to exercise the same.
(ii) The Agent will execute and deliver to the Pledgor, or cause
to be executed and delivered to the Pledgor, all such proxies, powers of
attorney, and other instruments as the Pledgor may reasonably request for
the purpose of enabling the Pledgor to exercise the voting rights which it
is entitled to exercise pursuant to subparagraph (i) above.
(iii) The Pledgor will be entitled to receive and retain any
and all cash Distributions paid in respect of the Pledged Securities to the
extent and only to the extent that the proceeds of such cash Distributions
are paid and applied in accordance with the terms and conditions of the
Loan Agreement and applicable laws. All other payments, dividends and
Distributions made on or in respect of Pledged Securities, whether paid or
payable in cash, securities or other property, and whether resulting from a
subdivision, combination or reclassification of the outstanding securities
of the issuer of any Pledged Securities or received in exchange for or in
redemption of Pledged Securities or any part thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, will be and become part of the
Collateral and, if received by the Pledgor, will not be commingled by the
Pledgor with any of its other funds or property but will be held separate
and apart therefrom in trust for the benefit of the Agent and will be
delivered to the Agent in the same form as so received (with any necessary
endorsement and/or instruments of transfer, as the Agent may request).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to Distributions which the Pledgor is
authorized to receive pursuant to subparagraph (a)(iii) of this Section 5 will
cease, and all such rights will thereupon become vested in the Agent, who will
have the sole and exclusive right and authority to receive and retain such
Distributions, which the Agent will apply to the Obligations as provided in
Section 8. All Distributions which are received by the Pledgor contrary to the
provisions of this paragraph 5(b) will be received in trust for the benefit of
the Agent and the Lenders, will be segregated from other property or funds of
the Pledgor and will be immediately delivered to the Agent in the same form as
so received (with any necessary endorsement and/or instruments of transfer, as
the Agent may request). Any and all money and other property paid over to or
received by the Agent pursuant to the provisions of this Section 5(b) will be
deposited by the Agent in an account to be
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established by the Agent for the benefit of the Agent and the Lenders upon
receipt of such money or other property and will be applied in accordance with
the provisions of Section 8.
(c) Upon written notice to that effect by the Agent to the Pledgor
after the occurrence and during the continuance of an Event of Default, all
rights of the Pledgor to exercise the voting rights which it is entitled to
exercise pursuant to subparagraph (a)(i) of this Section 5 will cease, and all
such rights will thereupon become vested in the Agent, which will have the sole
and exclusive right (but not the obligation) and authority to exercise such
voting rights. The Pledgor will execute and deliver to the Agent, all such
proxies, powers of attorney, and other instruments as the Agent will request for
the purpose of enabling the Agent to exercise the voting rights which it is
entitled to exercise pursuant to this Section 5(c) during the continuance of any
Event of Default.
SECTION 6. DISPOSITION OF PLEDGED SECURITIES. Notwithstanding any
other term hereof or any other Loan Document, the Agent agrees that Pledgor
shall have the right to transfer or otherwise dispose of any or all of the
Pledged Securities of Newco as may be required by the terms of the Newco
Shareholders Agreement or the IWC Group Agreement, whether or not an Event of
Default then exists, provided that Pledgor, concurrent with such transfer or
disposition, delivers to the Agent, as Collateral hereunder or under the
Security Agreement, the property received for such Pledged Securities of Newco.
The Agent acknowledges that if Pledgor fails to exercise its right of first
offer under the Newco Shareholders Agreement to acquire additional securities of
Newco, and other Newco shareholders or parties acquire such declined securities
of Newco, such securities shall not be deemed for any purpose hereof or any
other Loan Document to be Pledged Securities or Collateral.
SECTION 7. REMEDIES UPON DEFAULT. Upon the occurrence and during
the continuance of an Event of Default, whether or not all of the Obligations
have become due and payable, in addition to its rights under the Loan Agreement
or any other Loan Document:
(a) The Agent will have all of the rights and remedies with respect
to the Collateral of a secured party under the UCC (whether or not the UCC is in
effect in the jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under any
applicable law in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including the right, to the maximum extent permitted
by applicable law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Agent were the sole and
absolute owner thereof (and the Pledgor agrees to take all such action as may be
appropriate to give effect to such right);
(b) The Agent in its discretion may, in its name or in the name of
the Pledgor or otherwise, demand, xxx for, collect or receive any money or
property at any time payable or receivable on account of or in exchange for any
of the Collateral, but will be under no obligation to do so; and
(c) The Agent may, upon not fewer than ten days' prior written notice
to the Pledgor and subject to the terms of the final paragraph of this
Section 7(c), with respect to the Collateral or any part thereof which is then
or may thereafter come into the possession, custody
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or control of the Agent, the Lenders, or any of their respective agents, sell,
lease, assign or otherwise dispose of all or part of such Collateral, at such
place or places as the Agent deems appropriate, and for cash or for credit or
for future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to effect any
such disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the Agent or
any Lender or anyone else may be the purchaser, lessee, assignee or recipient of
any or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any right
or equity of redemption (statutory or otherwise) of the Pledgor, any such
demand, notice and right or equity being hereby expressly waived and released.
The Agent may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for the sale, and such sale may be made at any time or place to
which the sale may be so adjourned.
The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state or
other securities laws, the Agent may be compelled or deem it advisable, with
respect to any sale of all or any part of the Collateral, to limit purchasers to
those who will agree, among other things, to acquire the Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof, or who will agree to other restrictions which the Agent may deem to be
appropriate. The Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable to the Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agrees that any such private sale will be deemed to have been made in a
commercially reasonable manner and that the Agent will have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit registration such Collateral for public
sale.
The Agent acknowledges that the Pledged Securities of Newco are
subject to the Newco Shareholders Agreement and the IWC Group Agreement and that
any exercise of the Agent's rights and remedies with respect to such Pledged
Securities must be in accordance with the terms and conditions set forth in the
Newco Shareholders Agreement and the IWC Group Agreement regarding disposition
of such Pledged Securities, including, but not limited to, (i) the right of
first offer of Vanguard Pakistan to acquire such Pledged Securities in the event
of a bankruptcy proceeding involving IWCH, (ii) the tag along rights granted to
Vanguard Pakistan with respect to any sale of such Pledged Securities, (iii) the
right of other Newco shareholders to purchase such Pledged Securities in the
event that Pledgor fails to make certain loans or capital contributions to
Newco, and (iv) the right of first refusal of other Newco shareholders with
respect to sales of such Pledged Securities. The Agent further agrees that any
purchaser of such Pledged Securities through the exercise of the Agent's rights
and remedies hereunder (including the Agent or any of the Lenders) shall take
such Pledged Securities subject to the terms and conditions of the Newco
Shareholders Agreement and the IWC Group Agreement; PROVIDED, HOWEVER, that such
purchaser shall not succeed to the Pledgor's rights of first offer under the
Newco Shareholders Agreement. The Pledgor acknowledges that the Agent's
disposition of the Pledged Securities of Newco in accordance with the terms of
the Newco Shareholders
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Agreement, the IWC Group Agreement and this paragraph may be at prices and on
terms less favorable than those that would be obtained in connection with
dispositions not made in accordance with the Newco Shareholders Agreement, the
IWC Group Agreement and this paragraph and, notwithstanding the foregoing,
agrees that such dispositions so limited by the terms of the Newco Shareholders
Agreement, the IWC Group Agreement and this paragraph will be deemed to have
been made in a commercially reasonable manner.
SECTION 8. APPLICATION OF PROCEEDS OF SALE. The proceeds of any
sale of Collateral pursuant to Section 7, as well as any Collateral consisting
of cash, will be applied by the Agent as follows:
FIRST, to the payment of all costs and expenses incurred by the Agent
in connection with such sale or otherwise in connection with this Agreement
or any of the Obligations, including all court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Agent hereunder on behalf of the Pledgor and any other
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder;
SECOND, to the payment in full of all unpaid accrued interest on the
Notes, pro rata among the Lenders in accordance with the amount of unpaid
accrued interest on the Notes held by them;
THIRD, to the payment in full of the unpaid principal of the Notes,
pro rata among the Lenders in accordance with the unpaid principal amount
of the Notes held by them;
FOURTH, to the payment in full of the Obligations (other than those
referred to above), pro rata among the Persons to whom such Obligations are
owed in accordance with the aggregate amount of such Obligations owing to
such Persons; and
FIFTH, to the Pledgor, its successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT. Except as otherwise
provided herein, the Pledgor hereby appoints the Agent the attorney-in-fact of
the Pledgor for the purposes of carrying out the provisions of this Agreement or
taking any action or executing any instrument which the Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Agent will have the right, upon the occurrence and during the continuance of
an Event of Default, with full power of substitution either in the Agent's name
or in the name of the Pledgor, to ask for, demand, xxx for, collect, receive and
give acquittance for any and all monies due or to become due under or by virtue
of any Collateral, to endorse checks, drafts, orders and other instruments for
the payment of money payable to the Pledgor constituting Collateral or any part
thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and make any
agreement respecting, or otherwise deal
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with, the same; provided, however, that nothing herein contained will be
construed as requiring or obligating the Agent or any Lender to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment
received by the Agent, or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the monies due or
to become due in respect thereof or any property covered thereby, and no action
taken by the Agent or omitted to be taken with respect to the Collateral or any
part thereof will give rise to any defense, counterclaim or offset in favor of
any Pledgor or to any claim or action against the Agent. The Agent acknowledges
that the power of attorney granted to it under this Section 9 will not give it
the right, except during the continuance of an Event of Default, to exercise any
of the rights granted to the Pledgor under the Newco Shareholders Agreement,
other than the right to sell or otherwise dispose of the Pledged Securities of
Newco in accordance with the terms of the Newco Shareholders Agreement.
SECTION 10. NO WAIVER. No failure on the part of the Agent to
exercise, and no delay in exercising, any right, power or remedy hereunder will
operate as a waiver thereof, nor will any single or partial exercise of any such
right, power or remedy by the Agent preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. The Agent and the Lenders will not be deemed to have waived any rights
hereunder or under any other agreement or instrument unless such waiver is in
writing and signed by the Agent and Requisite Noteholders.
SECTION 11. SECURITY INTEREST ABSOLUTE. All rights of the Agent
hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder will be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of any other Loan
Document, any agreement with respect to any of the Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from any other Loan Document or any other agreement or instrument, (c) any
exchange, release, amendment or waiver of, or consent to or departure from, any
guaranty for all or any of the Obligations or (d) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, the
Pledgor in respect of the Obligations or in respect of this Agreement.
SECTION 12. FURTHER ASSURANCES. The Pledgor agrees to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time request in
connection with the administration and enforcement of this Agreement, with
respect to the Collateral or any part thereof or in order better to assure and
confirm unto the Agent its rights and remedies hereunder.
SECTION 13. FEES AND EXPENSES. The Pledgor agrees to pay upon
demand to the Agent (for the account of the Lenders, if appropriate) the amount
of any and all expenses, including the fees and expenses of its counsel and of
any experts or agents, and any other amount in respect of the Pledged Stock or
other Collateral, which the Agent or any Lender may incur or pay in connection
with the administration of this Agreement, the custody or preservation of, or
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the sale of, collection from, or other realization upon, any of the Collateral,
the exercise or enforcement of any of the rights of the Agent hereunder, the
failure by the Pledgor to perform or observe any of the provisions hereof, or
otherwise, including any contribution of capital to any other Person which in
the Agent's sole discretion may be required or reasonably necessary to preserve
any right with respect to, or the value of, any Collateral (including any
contribution to the capital of Newco which in the Agent's sole discretion may be
required of the Pledgor or reasonably necessary pursuant to the Newco
Shareholders Agreement or otherwise), any which contribution the Agent or any
Lender is authorized, but will not be required, to make on the Pledgor's behalf.
Any such amounts payable as provided hereunder or thereunder will be additional
Obligations secured by this Agreement and the other Loan Documents.
SECTION 14. BINDING AGREEMENT; ASSIGNMENTS. This Agreement, and
the terms, covenants and conditions hereof, will be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Pledgor will not be permitted to assign this Agreement
or any interest herein or in the Collateral or any part thereof, or otherwise
pledge, encumber or grant any option with respect to the Collateral or any part
thereof, or any cash or property held by or required to be delivered to the
Agent as Collateral under this Agreement, except with the prior written consent
of the Agent and Requisite Lenders.
SECTION 15. HOLIDAYS. Whenever any payment or action to be made or
taken under this Agreement is stated to be due or required to be taken on a day
which is not a Business Day, such payment or action will be made or taken on the
next following Business Day, and such extension of time will be included in
computing interest or fees, if any, in connection with such payment or action.
SECTION 16. NOTICES. All notices and other communications given to
or made upon any party hereto in connection with this Agreement will, except as
otherwise expressly provided herein, be in writing and mailed, telecopied or
delivered by hand or by reputable overnight courier service to the respective
parties, as follows:
Pledgor: c/o International Wireless Communications, Inc.
000 X. Xx Xxxxxx Xxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
WITH A COPY (WHICH WILL NOT CONSTITUTE NOTICE) TO:
Xxxxxx Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Hachigan, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
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Agent: Toronto Dominion Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
WITH COPIES (WHICH WILL NOT CONSTITUTE NOTICE) TO:
Toronto Dominion Investments, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
and
Xxxx Xxxxx
Xxxxxxxx & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
or in accordance with any subsequent written direction from the recipient party
to the sending party made in accordance with this Section 16. All such notices
and other communications will, except as otherwise expressly provided in this
Agreement, be effective upon (a) delivery if delivered by hand; (b) on the
Business Day after deposited with a reputable overnight courier service,
delivery charges prepaid; (c) on the third Business Day after deposited in the
mail, postage prepaid; or (d) in the case of telecopy, when received.
SECTION 17. SURVIVAL. All representations, warranties, covenants
and agreements of the Pledgor contained in this Agreement or made in writing in
connection herewith will survive the execution and delivery of this Agreement,
the making of the Loans hereunder and the issuance of the Notes. The provisions
of Sections 10 through 27 will survive repayment of the Loans and the other
amounts payable to the Lenders under this Agreement and the other Loan Documents
and the termination of this Agreement and the other Loan Documents.
SECTION 18. GOVERNING LAW; WAIVERS AND JURISDICTION.
(a) GOVERNING LAW. This Agreement will in all respects be governed
by, and construed and enforced in accordance with, the laws of the State of
California, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California, except that the filing, perfection, effect of perfection
and enforcement of security interests and liens under this Agreement in other
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jurisdictions will be governed by the laws of the applicable jurisdictions in
accordance with the UCC as in effect in the State of California.
(b) WAIVERS. To the extent permitted by law, each party hereto
hereby waives personal service of any and all process upon it in connection with
this Agreement and agrees that all such service of process may be made as
provided in Section 16, and service so made will be deemed to be completed as
provided in Section 16. In addition, the Pledgor and the Agent each hereby
waives trial by jury, any objections based on FORUM NON CONVENIENS and any
objections to venue of any action arising out of, connected with, related to or
incidental to the transactions contemplated by or the relationships established
in connection with this Agreement.
(c) EXCLUSIVE JURISDICTION. Except as provided in Section 18(d), all
disputes between the Pledgor and the Agent arising out of, connected with,
related to or incidental to the transactions contemplated by or the relationship
established between them in connection with this Agreement, and whether arising
in contract, tort, equity or otherwise, will be resolved only by state or
federal courts located in New York County, New York, and the Pledgor and the
Agent hereby consent and submit to the jurisdiction of any state or federal
court located within such county and state. The Pledgor and the Agent
acknowledge, however, that any appeals from those courts may be required to be
heard by a court located outside of New York County, New York. The Pledgor and
the Agent waive in all disputes any objection that they may have to the location
of the court considering the dispute. Nothing in this Section 18 will affect
the right of the Pledgor or the Agent to serve legal process in any other manner
permitted by law or affect the right of the Agent to bring any action or
proceeding against the Pledgor or its property in the courts of any other
jurisdiction.
(d) OTHER JURISDICTIONS. The Pledgor and the Agent agree that the
other of them will have the right to proceed against it in a court in any
location to enable the proceeding Person to enforce a judgment or other court
order obtained in any proceeding brought in accordance with Section 18(c) and
entered in favor of the proceeding Person. The Pledgor and the Agent waive any
objection that they may have to the location of the court in which the other of
them has commenced a proceeding described in this Section 18(d).
SECTION 19. HEREIN, ETC. Words such as "herein," "hereunder,"
"hereof" and the like will be deemed to refer to this Agreement as a whole and
not to any particular document or Article, Section or other portion of a
document. Section, clause, Exhibit and Schedule references contained in this
Agreement are references to Sections, clauses, Exhibits and Schedules in or
attached to this Agreement, unless otherwise specified. Each defined term used
in this Agreement has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Agreement has a comparable meaning
whether used in a masculine, feminine or gender-neutral form. As used in this
Agreement, the terms "knowledge" or "aware" will include the actual knowledge
and awareness of the Person in question, and the knowledge and awareness that
such Person would have obtained after making reasonable inquiry and exercising
reasonable diligence with respect to the matter in question. Whenever the term
"including" is used in this Agreement (whether or not that term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
effect) in connection with a listing of
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items within a particular classification, that listing will be interpreted to be
illustrative only and will not be interpreted as a limitation on, or an
exclusive listing of, the items within that classification. Each reference in
this Agreement to any law will be deemed to include such law as it hereafter may
be amended, supplemented or modified from time to time and any successor
thereto.
SECTION 20. SEVERABILITY. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law in any jurisdiction, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating any other provision of this Agreement or any
other Loan Document.
SECTION 21. HEADINGS. Section and subsection headings in this
Agreement are included for convenience of reference only and will not constitute
a part of this Agreement for any other purpose.
SECTION 22. COUNTERPARTS. This Agreement may be executed in
multiple counterparts and by any party hereto or thereto on separate
counterparts, each of which, when so executed and delivered, will be an
original, but all such counterparts will together constitute one and the same
instrument.
SECTION 23. INDEMNIFICATION. In consideration of the Agent's
execution and delivery of this Agreement and the Initial Lenders' making of the
Loans, and in addition to all other obligations of the Pledgor under this
Agreement and the other Loan Documents, the Pledgor will defend, protect,
indemnify and hold harmless the Agent and all of its officers, directors,
employees and agents (including those retained in connection with the
transactions contemplated by this Agreement and the other Loan Documents)
(collectively, the "INDEMNITEES") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys' fees and disbursements, but
excluding claims and losses arising from such Indemnitee's breach hereof or
thereof or such Indemnitee's gross negligence or willful misconduct (the
"INDEMNIFIED LIABILITIES"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to (i) any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of
the Loans, (ii) the execution, delivery, performance or enforcement of this
Agreement, the Notes or the other Loan Documents and any instrument, document or
agreement executed pursuant hereto by any of the Indemnitees or (iii) the
Agent's status as an agent of the Lenders. To the extent that the foregoing
undertaking by the Pledgor may be unenforceable for any reason, the Pledgor will
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. To the
extent that the undertaking to indemnify, pay and hold harmless by the Pledgor
under this Section 23 may be unenforceable because it violates any law or public
policy, the Pledgor will contribute the maximum portion
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that it is permitted to pay and satisfy under applicable law or public policy to
the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnities or any of them.
SECTION 24. PAYMENT SET ASIDE. To the extent the Pledgor makes a
payment or payments to any Lender or Agent hereunder or under the Notes or any
other Loan Document or any Lender or Agent enforces its security interests or
rights or exercises its right or setoff hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Pledgor, a trustee, receiver or any other Person
under any law (including any bankruptcy law, state or federal law, common law or
equitable cause of action), then to the extent of any such restoration the
obligation or part thereof originally intended to be satisfied and all Liens
created under this Agreement will be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
SECTION 25. COMPLETE AGREEMENT. Except as otherwise expressly set
forth herein, this Agreement, the Notes and the other Loan Documents embody the
complete agreement and understanding of the parties hereto and thereto and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, whether written or oral, which may have related to the
subject matter hereof in any way, and such agreements may not be contradicted or
varied by evidence of prior, contemporaneous or subsequent oral discussions or
understandings of the parties. The parties hereto acknowledge and agree there
are no oral understandings or agreements between them with respect to the
subject matter hereof or thereof.
SECTION 26. NO STRICT CONSTRUCTION. The language used in this
Agreement and the other Loan Documents will be deemed to be the language chosen
by the parties to express their mutual intent. In the event an ambiguity or
question of intent or interpretation arises, this Agreement and the other Loan
Documents will be construed as if drafted jointly by the parties, and no
presumption or burden of proof will arise favoring or disfavoring any Person by
virtue of the authorship of any of the provisions of this Agreement or any other
Loan Document.
SECTION 27. TERMINATION.
(a) This Agreement and the pledges and security interests granted
hereby will terminate when all the Obligations have been indefeasibly paid in
full, at which time the Agent will execute and deliver to the Pledgor all
Uniform Commercial Code termination statements and similar documents prepared by
the Pledgor which the Pledgor may reasonably request to evidence such
termination.
(b) Notwithstanding anything to the contrary contained in this
Agreement, this Agreement will remain in full force and effect and continue to
be effective should any petition be filed by or against the Pledgor for
liquidation or reorganization, should the Pledgor become insolvent or make an
assignment for any benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Pledgor's assets, and will
continue to be effective
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or be reinstated, as the case may be, if at any time payment and performance of
the obligations, or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
of the obligations, whether as a "voidable, preference," "fraudulent conveyance"
or otherwise, all as though such payment, or any part thereof, is rescinded,
reduced, restored or returned.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement, or caused this Pledge Agreement to be duly executed, as of the day
and year first above written.
PAKISTAN WIRELESS HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Its:
-------------------------------
TORONTO DOMINION INVESTMENTS, INC.,
as Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Its:
-------------------------------
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SCHEDULE I
ISSUER CERTIFICATE NO. QUANTITY
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Newco -- --
15
