Exhibit 4.7
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SECURITY AND CONTROL AGREEMENT
IWO HOLDINGS, INC., a Delaware corporation (the "Pledgor"), FIRSTAR
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BANK, N.A., as trustee (in that capacity, the "Trustee") for the registered
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holders from time to time (the "Holders") of the Notes (as defined herein)
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issued by the Pledgor under the Indenture referred to below, and FIRSTAR BANK,
N.A., as securities intermediary (in that capacity, the "Securities
Intermediary"), hereby enter into this SECURITY AND CONTROL AGREEMENT (this
"Security Agreement") as of and on February 2, 2001.
All references herein to the "UCC" are to the Uniform Commercial Code
in effect in the State of New York. Capitalized terms not otherwise defined
herein have the meaning given them in the Indenture referred to below.
RECITALS
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A. The Pledgor and the Trustee have entered into an Indenture dated
as of the date hereof (as amended, restated, supplemented or otherwise modified
from time to time, the "Indenture"), under which the Pledgor is issuing on the
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date hereof $160,000,000 in aggregate principal amount of 14% Senior Notes due
2011 (together with any notes that may from time to time be issued in
substitution therefor, the "Notes"). The Notes are being sold in the form of
Units (the "Units") each consisting of $1,000 in aggregate principal amount of
the Pledgor's Notes and one warrant to purchase 12.50025 shares of common stock,
par value $0.01 per share, of the Pledgor.
B. The Pledgor has agreed that on the date hereof, $61,452,219.48
of the net proceeds from the Units' sale (the "Interest Reserve") will be paid
directly to the Securities Intermediary.
C. The Trustee has opened a securities account with the Securities
Intermediary, at the Securities Intermediary's office at 000 Xxxx 0xx Xxxxxx,
Xx. Xxxx, XX 00000, which account bears Account No. 000025907701, is in the name
of "Firstar Bank, N.A. as trustee for the holders of the 14% Senior Notes due
2011 of IWO Holdings, Inc." (together with any successor account or accounts,
the "Securities Account"). The Securities Account is the "Interest Reserve
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Account" to which the Indenture and the Offering Circular for the Notes make
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reference.
D. The Securities Intermediary has agreed to use the Interest
Reserve to purchase Government Notes (the "Pledged Securities") and to place the
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Pledged Securities in, or credit the Pledged Securities to, the Securities
Account for the benefit of the Holders of the Notes.
E. It is a condition to the issuance of the Notes that the Pledgor
(i) grants to the Trustee for its benefit and the ratable benefit of the Holders
of the Notes a valid, perfected and first priority security interest in the
Securities Account, the Pledged Securities and related collateral to secure the
Pledgor's payment and performance of its Obligations (as defined below), and
(ii) executes and delivers this Security Agreement to evidence that security
interest.
NOW, THEREFORE, in consideration of the mutual promises herein and the
benefits to be received therefrom, the Pledgor, the Trustee, and the Securities
Intermediary agree as follows:
SECTION 1. Grant of Security Interest. The Pledgor hereby grants to
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the Trustee, for its benefit and for the ratable benefit of the Holders of the
Notes, a continuing security interest in and to all of the Pledgor's right,
title and interest in, to and under the following (wherever located), whether
investment property, general intangibles, other rights, interests, claims, or
otherwise (collectively, the "Pledged Collateral"): (a) the Securities Account,
all "Financial Assets" (as defined in UCC (S) 8-102(a)(9)) held therein
(including the Pledged Securities), and all "Securities Entitlements" (as
defined in UCC (S) 8-102(a)(17)) with respect thereto, (b) any successor or
other account into which Financial Assets held in the Securities Account may be
transferred or held at any time and all Security Entitlements with respect
thereto, and (c) all proceeds of any of the foregoing (including, without
limitation, proceeds that constitute property of the types described in clauses
(a) and (b) of this Section 1).
SECTION 2. Security for Obligations. This Security Agreement and
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the security interest granted hereby secure (i) the Pledgor's prompt and
complete payment of all amounts due, either at maturity or upon acceleration,
under the Notes and (ii) the Pledgor's timely and full payment and performance
of all other obligations under the Notes, the Indenture, and this Security
Agreement (collectively, the "Obligations").
SECTION 3. Delivery of Pledged Securities; Maintenance of
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Securities Account.
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(1) Upon the Securities Intermediary's acquisition of Pledged
Securities or Security Entitlements thereto, the Securities Intermediary shall
promptly make appropriate book entries indicating that the Trustee is the sole
"Entitlement Holder" (as defined in UCC (S) 8-102(a)(7)) with respect to all
Pledged Collateral that constitutes Securities Entitlements. Subject to the
other terms and conditions of this Security Agreement, all funds or other
property held by the Trustee under this Security Agreement shall be held in the
Securities Account and be subject to the Trustee's exclusive dominion and
control (including "control" as defined in UCC (S) 9- 115(l)(e)), for the
benefit of the Trustee and for the ratable benefit of the Holders of the Notes,
and segregated from all other funds or other property otherwise held by the
Trustee.
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(2) The Securities Intermediary shall cause all securities or other
property underlying any Financial Assets credited to the Securities Account,
including, without limitation, all Pledged Securities, to be registered in the
name of the Securities Intermediary, endorsed to the Securities Intermediary or
in blank, or credited to another securities account maintained in the name of
the Securities Intermediary. In no case will any Financial Asset credited to the
Securities Account be registered in the name of, payable to the order of, or
specially endorsed to the Pledgor, unless it has been specially endorsed to the
Securities Intermediary or in blank.
(3) So long as no Event of Default has occurred and is continuing,
as between the Pledgor and the Trustee the Trustee agrees to pass on to the
Securities Intermediary the Pledgor's instructions with respect to the selection
of Government Notes to be held in the Securities Account. The Securities
Intermediary agrees to comply with the instructions of the Trustee with respect
to the selection of the Government Notes to be held in the Securities Account.
(4) The Securities Intermediary shall not disburse or dispose of any
Pledged Collateral except in accordance with the terms hereof.
(5) Concurrently with the execution and delivery of this Security
Agreement, the Trustee and the Securities Intermediary are delivering to the
Pledgor and to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (an affiliate
of Credit Suisse First Boston Corporation), Chase Securities Inc., BNP Paribas
Securities Corp. and UBS Warburg LLC, as the Notes' initial purchasers, a
certificate, in the form of Exhibit A hereto, duly executed by an officer of
each of the Trustee and the Securities Intermediary, confirming that (i) the
Trustee has established and will maintain the Securities Account with the
Securities Intermediary, and (ii) the Securities Intermediary has received the
Interest Reserve, has used the Interest Reserve to acquire Pledged Securities or
a Securities Entitlement thereto, and has credited the same to the Securities
Account, in accordance with this Security Agreement.
(6) Concurrently with the execution and delivery of this Security
Agreement, the Pledgor shall deliver to the Trustee executed copies of proper
financing statements, which the Trustee shall cause to be duly filed in the
office of the Secretary of State of New York, the Clerk of Albany County and the
Secretary of State of the State of Delaware, covering the Pledged Collateral
described in this Security Agreement.
SECTION 4. Entitlement Orders; Subordination of Lien, Waiver of
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Set-Off, etc.
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(1) The Trustee shall, in accordance with and subject to all
applicable laws, be the sole Entitlement Holder of, and have the sole power to
originate "Entitlement Orders" (as defined in UCC (S) 8-102(a)(8)) with respect
to, the Pledged Collateral. The Securities Intermediary shall immediately comply
with Entitlement Orders issued by the Trustee with respect to the Pledged
Collateral without further consent of the Pledgor or any other Person.
(2) The Securities Intermediary agrees that any security interest
in any of the Pledged Collateral that it has or may in the future acquire shall
be subordinate to the Trustee's security interest created hereby. The Financial
Assets held in the Securities Account will not be subject to deduction, setoff,
banker's lien, or any other right in favor of any Person other than the Trustee
(except that the Securities Intermediary may set off or deduct all amounts due
to it as customary fees for the routine operation and maintenance of the
Securities Account and for the customary fees owed to the Trustee).
(3) In the event of any conflict between this Security Agreement
(or any term thereof) and any other agreement, the terms of this Security
Agreement shall prevail.
(4) The Securities Intermediary hereby confirms and agrees that:
(1) It has not entered into any agreement (other than
this Security Agreement and the Indenture) with the Pledgor with
respect to the Securities Account;
(2) It has not granted, and until the termination of this
Security Agreement will not grant, control (including without
limitation, "control" as defined in UCC (S) 9-115(l)(e) or any
successor provision) over or with respect to any Pledged
Collateral to any Person other than the Trustee. It has not
entered into, and until the termination of this Security
Agreement will not enter into, any agreement with any Person in
which it agrees to comply with Entitlement Orders, relating to
the Pledged Collateral, from any Person other than the Trustee or
which purports to limit or condition its obligation under this
Section 4 to comply with the Trustee's Entitlement Orders.
SECTION 5. Adverse Claims. The Securities Intermediary does not
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know of any claim to, or interest in, any Pledged Collateral other than those of
the Trustee and the Pledgor. If any Person asserts or attempts to enforce any
Lien or adverse claim (including by means of writ, garnishment, judgment,
warrant of attachment, execution or similar process) against any Pledged
Collateral, the Securities Intermediary will promptly notify the Trustee and the
Pledgor.
SECTION 6. Disbursements.
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(1) Immediately prior to the first six scheduled interest payments
on the Notes, upon the Trustee's receipt of a written request from the Pledgor
that is substantially in the form of Exhibit B, attached hereto (a "Cash
Disbursement Request"), the Trustee will promptly instruct the Securities
Intermediary (i) to liquidate sufficient assets in the Securities Account so
that net proceeds therefrom will fund the amount needed to make the applicable
interest payment then due as requested in the Cash Disbursement Request, and
(ii) to transfer those net proceeds as indicated therein. Neither the Trustee
nor the Securities Intermediary shall be liable for any loss incurred upon the
liquidation of assets in the Securities Account except loss due to their
respective gross negligence or willful misconduct.
(2) Any Cash Disbursement Request must be received no later than
five Business Days before the disbursement date requested therein (which date
must be a Business Day), must include the certifications in Exhibit B, and (as
applicable) must be accompanied by the additional documentation referred to
therein.
(3) The Trustee need not inquire into or verify the truth or
accuracy of any statement in a Cash Disbursement Request.
(4) Upon payment in full of the first six scheduled interest
payments on the Notes, the security interest in the Pledged Collateral evidenced
by this Security Agreement will automatically terminate and be of no further
force and effect and the Pledged Collateral shall promptly be paid over and
transferred to the Company or the Company's designee, as the case may be.
Furthermore, upon the release of any Pledged Collateral from the Securities
Account in accordance with the terms of this Security Agreement, whether upon
release of Pledged Collateral in payment of scheduled interest payments on the
Notes or otherwise, the security interest evidenced by this Security Agreement
in such released Pledged Collateral will automatically terminate and be of no
further force and effect.
(5) Nothing in this Security Agreement shall afford the Pledgor
(i) any right to issue Entitlement Orders with respect to any Pledged Collateral
or (ii) except as expressly provided in Section 6(a) hereof (or as required by
applicable law), any other right with respect to the Pledged Collateral.
(6) Nothing in this Section 6 shall limit the Trustee's rights and
powers under this Security Agreement.
SECTION 7. Pledgor's Representations and Warranties. The Pledgor
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hereby represents and warrants that, as of the date hereof:
(a) The Pledgor's execution and delivery of, and its performance of
its obligations under, this Security Agreement will not (i) contravene any
provision of applicable law or statute, the Pledgor's organization
documents, any material agreement or other
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material instrument binding upon the Pledgor or any of its affiliates, or
any judgment, order or decree of any governmental or tribal body, agency or
court having jurisdiction over the Pledgor or any of its affiliates, or
(ii) result in the creation or imposition of any Lien on assets of the
Pledgor, except for the security interest granted to the Trustee herein.
Except as described in the Offering Circular, no consent, approval,
authorization or order of, qualification with, or other action by any
governmental, tribal, or regulatory body or agency or any third party is
required for (i) the Pledgor's execution, delivery or performance of this
Security Agreement, (ii) the Pledgor's grant of, or the perfection and
maintenance of, the security interest created hereby (including its first
priority nature), or (iii) the Trustee's exercise of its rights or remedies
with respect to the Pledged Collateral.
(b) The Pledgor has duly and validly authorized, executed, and
delivered this Security Agreement. Assuming the Trustee's and Security
Intermediary's due authorization, execution and delivery of this Security
Agreement and its enforceability against the Trustee and the Securities
Intermediary in accordance with its terms, this Security Agreement
constitutes the Pledgor's valid and binding agreement, enforceable against
it in accordance with its terms, except as (i) may be limited by
bankruptcy, insolvency, fraudulent transfer, preference, reorganization,
moratorium, or similar laws now or hereafter in effect relating to or
affecting creditors' rights or remedies generally, (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability and the discretion of the court considering the matter, (iii)
the exculpation provisions and rights to indemnification hereunder may be
limited by federal and state securities laws and public policy
considerations, and (iv) the waiver of rights and defenses in and other
provisions of Sections 13(b), 16.11, and 16.15 hereof may be limited by
applicable law.
(c) The Pledgor is the legal and beneficial owner of the Pledged
Securities and other Pledged Collateral. The Pledgor owns the Pledged
Securities and other Pledged Collateral free and clear of any Lien or claim
of any person or entity, except for the security interest granted to the
Trustee herein. No financing statement or other instrument similar in
effect covering the Pledgor's interest in the Pledged Securities is on file
in any public office, other than any financing statement filed under this
Security Agreement.
(d) Upon the Trustee's acquisition of a Security Entitlement in the
Pledged Collateral in accordance herewith, and the Securities
Intermediary's performance of its obligations hereunder, the security
interest granted to the Trustee herein will constitute a first priority
perfected security interest in the Pledged Collateral (except, with respect
to proceeds, only to the extent permitted by UCC (S) 9-306), enforceable
(except insofar as enforcement may be affected by general equitable
principles whether considered in a proceeding in equity or at law) as such
against all creditors of the Pledgor and against any Person purporting to
purchase any of the Pledged Collateral from the Pledgor. All filings and
actions necessary to perfect and protect that security interest have been
duly taken.
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(e) There are no legal or governmental proceedings pending or, to the
best of the Pledgor's knowledge, threatened, to which the Pledgor or any of
its subsidiaries is a party or relating to any property of the Pledgor or
any subsidiary, that would materially adversely affect the Pledgor's power
or ability to perform its obligations under this Security Agreement, the
Notes, or the Indenture.
(f) No law or governmental regulation (including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System) applicable to the Pledgor prohibits the grant of the security
interest to the Trustee hereunder.
(g) IWO Holdings, Inc. maintains its chief executive offices at 000
Xxxxx Xxxx Xxxxxxxxx, Xxxxxx, XX 00000-0000. The Pledgor will not, until
the Termination Date (as defined below), change the location of its chief
executive offices or its jurisdiction of incorporation without giving at
least 30 days' prior written notice to the Trustee.
(h) No Event of Default (as defined herein) exists.
SECTION 8. Pledgor's Covenants. In addition to its other agreements
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herein, the Pledgor covenants and agrees with the Trustee and the Holders of the
Notes that from and after the date hereof until the Termination Date:
(a) it will, promptly upon request by the Trustee, execute and deliver
or cause to be executed and delivered, or use its commercially reasonable
efforts to procure, all assignments, instruments and other documents, in
form and substance reasonably satisfactory to the Trustee, and take any
other action that is necessary or desirable to perfect, continue the
perfection of, or protect the first priority of the Trustee's security
interest in the Pledged Collateral, to protect the Pledged Collateral
against rights, claims, or interests asserted by third persons (other than
any rights, claims or interests created by the Trustee), to enable the
Trustee to enforce its rights and remedies hereunder, and to effect the
purposes of this Security Agreement. The Pledgor will promptly pay all
reasonable costs incurred in connection with any of the foregoing.
(b) it will not (and will not purport to) (i) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Pledged Collateral or its beneficial interest therein, or (ii) create or
permit to exist any Lien or other adverse interest in or with respect to
its beneficial interest in any of the Pledged Collateral (other than the
security interest granted herein);
(c) it will not (i) enter into any agreement or understanding that
restricts or inhibits or purports to restrict or inhibit the Trustee's
rights or remedies hereunder, including, without limitation, the Trustee's
right to dispose of the Pledged Collateral as
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provided herein, or (ii) fail to pay or discharge any tax, assessment or
levy of any nature with respect to its beneficial interest in the Pledged
Collateral later than five days before the date of any proposed sale under
any judgment, writ or warrant of attachment with respect to its beneficial
interest; and
(d) it will at all times remain the sole beneficial owner of the
Pledged Collateral (subject to the security interest granted to the Trustee
herein).
SECTION 9. Securities Intermediary's Representations, Warranties and
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Covenants. The Securities Intermediary represents and warrants that it is, as of
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the date hereof, and it agrees that for so long as it maintains the Securities
Account and acts as securities intermediary under this Security Agreement it
shall be, a "Securities Intermediary" (as defined in the UCC and in 31 C.F.R.
(S)357.2). In furtherance of the foregoing, and in addition to its other
representations, warranties, and agreements herein, the Securities Intermediary
hereby:
(a) represents and warrants that it is a corporation that, in the
ordinary course of its business, maintains securities accounts for others
and is acting in that capacity with respect to the Securities Account;
(b) covenants that, as Securities Intermediary hereunder and with
respect to the Securities Account, it shall not take any action
inconsistent with, and represents and warrants that it is not and so long
as this Security Agreement remains in effect will not become party to any
agreement whose terms are inconsistent with, this Security Agreement;
(c) agrees to treat any item of property credited to the Securities
Account as a financial asset within the meaning of UCC (S) 8-102(a)(9);
(d) agrees, so long as it serves as Securities Intermediary under this
Security Agreement, to maintain the Securities Account as a securities
account and maintain appropriate books and records in respect thereof in
accordance with its usual procedures and subject to the terms of this
Security Agreement;
(e) agrees, with the other parties to this Security Agreement, that
its jurisdiction, for purposes of UCC (S) 8-110(e)(1) and 31 C.F.R.
357.11(b) as it pertains to this Security Agreement, the Securities Account
and Security Entitlements relating thereto, shall be the State of New York;
and
(1) agrees that it will maintain the Securities Account, at its office
at the address set forth in the Recitals hereof, segregated from all other
accounts, and will not change the name on the account or its account number
without the Trustee's prior written consent.
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SECTION 10. Power of Attorney. Upon the occurrence and continuation
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of an Event of Default (as defined herein), in addition to all of the powers
granted to the Trustee under the Indenture, the Pledgor hereby appoints and
constitutes the Trustee its attorney-in-fact, with full authority in its place
and its name to take, from time to time in the Trustee's discretion, any action
and to execute any instrument that the Trustee may deem necessary or advisable
to accomplish the purposes of this Security Agreement. The Trustee's authority
under this Section 10 shall include, without limitation, the authority to
endorse and negotiate any checks or instruments representing proceeds of Pledged
Collateral in the name of the Pledgor, execute and give receipt for any
certificate of ownership or any document constituting Pledged Collateral,
transfer title to any item of Pledged Collateral, sign the Pledgor's name on all
financing statements (to the extent permitted by applicable law) or any other
documents deemed necessary or appropriate by the Trustee to preserve, protect or
perfect the security interest in the Pledged Collateral and to file the same,
prepare, file and sign the Pledgor's name on any notice of Lien, and to take any
other actions arising from or incident to the powers granted to the Trustee in
this Security Agreement. This power of attorney is coupled with an interest and
is irrevocable. Notwithstanding anything to the contrary herein, the Trustee has
no duty or obligation to exercise any of the powers in this Section 10.
SECTION 11. No Assumption of Duties; Reasonable Care. The Trustee
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and the Securities Intermediary undertake to perform only those duties that are
specifically set forth herein. This Security Agreement does not, and may not be
interpreted to, impose any implied duties or obligations on either of them.
Except as provided by applicable law or by the Indenture, the Trustee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Collateral if the Trustee accords the Pledged Collateral treatment
substantially similar to that which the Trustee accords similar property held by
the Trustee for similar accounts, it being understood that the Trustee shall not
have any responsibility for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities or other matters relative to any
Pledged Collateral, whether or not the Trustee has or is deemed to have
knowledge of those matters, (ii) investing or reinvesting any Pledged
Collateral, or (iii) any loss on any investment.
SECTION 12. Indemnity. The Pledgor shall indemnify, hold harmless
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and defend each of the Trustee and the Securities Intermediary and their
respective directors, officers, employees, attorneys, and agents (each, an
"Indemnified Person") from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs and reasonable legal fees and expenses and damages,
arising from the performance by the Trustee and the Securities Intermediary of
their respective obligations under this Security Agreement. The Pledgor shall,
upon demand by any Indemnified Person, promptly pay or reimburse that
Indemnified Person for all such expenses, costs, fees and damages.
Notwithstanding the foregoing, the Pledgor (i) shall not be obligated to
indemnify any Indemnified Person from any claim, action, obligation, liability
or expense against or incurred by that Indemnified Person that is judicially
determined (the determination having become final) to be
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directly attributable to the gross negligence or willful misconduct of that
Indemnified Person, and (ii) shall, upon that final judicial determination, be
entitled to recover from that Indemnified Person all amounts theretofore paid
hereunder.
SECTION 13. Remedies Upon Event of Default. As used herein, "Event
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of Default" means (i) any Event of Default as that term is defined in the
Indenture, and (ii) any breach by the Pledgor of its representations,
warranties, covenants, or agreements herein. If any Event of Default shall occur
before the Termination Date and be continuing:
(a) The Trustee and the Holders of the Notes shall have, in addition
to all other rights given by law, by this Security Agreement, or by the
Indenture, all of the rights and remedies with respect to the Pledged
Collateral of a secured party under the UCC. In addition, with respect to
any Pledged Collateral that shall then be in or shall thereafter come into
the possession or custody or under the control of the Trustee, the Trustee
may, upon the direction of a majority in aggregate principal amount of the
Holders of the Notes, sell or cause the same to be sold at any broker's
board or at public or private sale, in one or more sales or lots, for cash
or on credit or for future delivery, without assumption of any credit risk.
The purchaser of any or all Pledged Collateral so sold shall thereafter
hold the same absolutely, free from any claim, encumbrance or right of any
kind whatsoever of, or created by or through, the Pledgor. The Trustee
shall give the Pledgor notice of the time and place of any public sale of
the Pledged Collateral as is feasible and reasonable under the
circumstances, except no notice of sale shall be required if the Trustee
determines, in its reasonable judgment, that (i) an immediate sale is
necessary because the Pledged Collateral threatens to decline speedily in
value or (ii) the Pledged Collateral is or becomes of a type regularly sold
on a recognized market. To the extent permitted by applicable law, the
Pledgor agrees that any sale of the Pledged 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 Pledged Collateral shall be deemed to
be commercially reasonable. Subject to the other provisions of this Section
13(a), notice mailed to the Pledgor as provided in Section 16.1 hereof at
least 10 days before the time of the sale or disposition shall constitute
reasonable notice. The Trustee or any Holder of Notes may, in its own name
or in the name of a designee or nominee, buy any of the Pledged Collateral
at any public sale and, if permitted by applicable law, at any private
sale. All expenses (including court costs and reasonable attorneys' fees,
expenses 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 Pledged Collateral.
(b) The Pledgor shall use its reasonable best efforts to do or cause
to be done all reasonably necessary or appropriate acts to make a sale of
all or portion of the Pledged Collateral under this Section 13 valid and
binding and in compliance with any applicable requirements of law. The
Pledgor agrees that a breach of any of its covenants in this
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Section 13 will cause irreparable injury to the Trustee and the Holders of
the Notes, that the Trustee and the Holders of the Notes would have no
adequate remedy at law in respect of such a breach and, as a consequence,
that each of its covenants in this Section 13 shall be specifically
enforceable against them. The Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of these
covenants except for a defense that no Event of Default has occurred.
(c) The Trustee may, without notice to the Pledgor except as required
by law and at any time or from time to time, charge, setoff and otherwise
apply all or any part of the Obligations against the Securities Account or
any part thereof.
(d) If an Event of Default shall have occurred and be continuing and
the Notes shall have been accelerated, the Trustee shall apply the funds in
the Securities Account in the following order of priority: first, to the
Trustee for amounts due to the Trustee under the Indenture; second, to the
Holders for amounts due and unpaid on the Notes for interest, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for interest; and third, to the Holders for
amounts due and unpaid on the Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal.
SECTION 14. Expenses. The Pledgor shall promptly upon demand pay to
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each of the Trustee and the Securities Intermediary any and all reasonable
expenses, including, without limitation, the reasonable fees, expenses and
disbursements of counsel, experts and agents, that either the Trustee or the
Securities Intermediary may incur in connection with (a) the review, negotiation
and administration of this Security Agreement, (b) the maintenance of the
Securities Account and the custody, preservation, or sale of, collection from,
or other realization upon, any of the Pledged Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder, (d) the Pledgor's failure to perform or observe any of the provisions
hereof, or (e) any claim covered by Section 12 hereof.
SECTION 15. Security Interest Absolute. All rights of the Trustee and
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the Holders of the Notes and the security interest granted to the Trustee
hereunder, and all obligations of the Pledgor hereunder, shall be absolute and
unconditional under all circumstances, including but not limited to:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment or
performance of, or in any other term of, any of the Obligations, or any
other amendment or waiver of or any consent to any departure from the
Indenture;
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(c) any taking, exchange, surrender, release or non-perfection of
any other collateral or any taking, release, amendment, or waiver of any
provision of any guaranty for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Pledgor or any of its affiliates; or
(e) to the extent permitted by applicable law, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Pledgor in respect of the Obligations or of this Security
Agreement.
SECTION 16. Miscellaneous Provisions.
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Section 16.1 Notices. Any notice or communication given hereunder
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shall be sufficiently given if in writing and delivered in person or mailed by
first class mail, commercial courier service or telecopier communication,
addressed as follows:
if to the Pledgor:
-----------------
IWO Holdings, Inc.
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxx
Xxx Xxxx 00000-0000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
--------------
Xxxxxx Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
12
if to the Trustee:
-----------------
Firstar Bank, N.A.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Telecopier: (000) 000-0000
if to the Securities Intermediary:
---------------------------------
Firstar Bank, N.A.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Telecopier: (000) 000-0000
Section 16.2 No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Security Agreement may not be used to interpret another agreement or document of
the Pledgor or any of its affiliates. No other agreement or document (other than
the Indenture) may be used to interpret this Security Agreement.
Section 16.3 Severability. The provisions of this Security
------------
Agreement are severable, and if any clause or provision shall be held invalid,
illegal or unenforceable in whole or in part in any jurisdiction, then the
invalidity or unenforceability shall affect in that jurisdiction only that
clause or provision, or part thereof, and shall not in any manner affect the
clause or provision in any other jurisdiction or any other clause or provision
of this Security Agreement in any jurisdiction.
Section 16.4 Headings. The headings in this Security Agreement
--------
are included for convenience of reference only, are not to be considered a part
hereof, and do not modify or restrict any of the terms or provisions hereof.
Section 16.5 Counterpart Originals; Photocopies. This Security
----------------------------------
Agreement may be signed in two or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
agreement. A photocopy or other reproduction of this Security Agreement or any
financing statement covering the Pledged Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
Section 16.6 Benefits of Security Agreement. Nothing in this
------------------------------
Security Agreement, express or implied, shall give to any person, other than the
parties hereto, their
13
successors hereunder, and (subject to the provisions of the Indenture) the
Holders of the Notes, any legal or equitable right, remedy or claim. There shall
be no third-party beneficiaries of this Security Agreement. No Holder of Notes
shall have any independent rights hereunder, other than those rights granted to
individual Holders of the Notes under the Indenture.
Section 16.7 Amendments, Waivers and Consents. Any amendment of
--------------------------------
this Security Agreement and any consent to any departure by the Pledgor from any
provision of this Security Agreement shall be effective only if made or duly
given in compliance with all of the terms and provisions of the Indenture.
Neither the Trustee nor any Holder of Notes shall be deemed, by any act, delay,
indulgence, omission or otherwise, to have waived any right or remedy hereunder
or to have acquiesced in any Default or Event of Default or in any breach of any
of the terms and conditions hereof. A failure to exercise, a delay in
exercising, or a waiver of any right, power or privilege hereunder by the
Trustee or any Holder of Notes shall not preclude any subsequent exercise
thereof or the exercise of any other right, power or privilege. 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.
Section 16.8 Interpretation of Agreement. Acceptance of or
---------------------------
acquiescence in a course of performance rendered under this Security Agreement
shall not be relevant to determine the meaning of this Security Agreement, even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
Section 16.9 Continuing Security Interest; Termination.
-----------------------------------------
(1) This Security Agreement shall create a continuing security
interest in and to the Pledged Collateral, shall be binding upon the Pledgor,
its transferees, successors and assigns, shall inure, together with the rights
and remedies of the Trustee hereunder, to the benefit of the Trustee, the
Securities Intermediary, the Holders of the Notes and their respective
successors, transferees and assigns, and shall remain in full force and effect
until the Termination Date. On or as soon as practicable after the Termination
Date, the Trustee shall, at the expense of the Pledgor, take any reasonable
action necessary to release the security interest created hereby, including the
execution and delivery of any termination statement prepared and delivered to it
by the Pledgor. Any redelivery of the Pledged Collateral hereunder to the
Pledgor shall be without warranty by or recourse to the Trustee in its capacity
as such, except as to the absence of any Liens on the Pledged Collateral created
by or arising through the Trustee, and shall be at the reasonable expense of the
Pledgor.
(2) This Security Agreement shall terminate on the day (the
---
"Termination Date") on which the Pledgor has paid all of the first six scheduled
-----------------
interest payments on the Notes in full.
14
(3) Notwithstanding the foregoing, the Pledgor's obligations under
Sections 12 and 14 shall survive this Security Agreement's termination.
Section 16.10 Survival of Representations and Covenants. All of
-----------------------------------------
the Pledgor's representations, warranties and covenants herein shall survive
execution and delivery of this Security Agreement, and (subject to Section
16.9(c) above) shall terminate only upon the termination of this Security
Agreement.
Section 16.11 Waivers. The Pledgor waives presentment and demand
-------
for payment of any of the Obligations, protest and notice of dishonor or default
with respect to any of the Obligations, and all other notices to which the
Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
Section 16.12 Authority of the Trustee and Securities
---------------------------------------
Intermediary.
------------
(1) Each of the Trustee and Securities Intermediary may exercise all
rights and powers granted hereunder, together with any powers reasonably
incident hereto. The Trustee and the Securities Intermediary may perform any of
their respective duties hereunder or in connection with the Pledged 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 their rights, powers and
duties hereunder. The Trustee and the Securities Intermediary shall not be
responsible for the validity, effectiveness or sufficiency hereof or of any
document or security furnished in accordance herewith. The Trustee, the
Securities Intermediary and their respective directors, officers, employees,
attorneys and agents may conclusively rely on any communication, instrument or
document reasonably believed by them to be genuine and correct and to have been
signed or sent by the proper person or persons.
(2) The Pledgor acknowledges that, as between the Pledgor and the
Trustee, with respect to any action or inaction by the Trustee in connection
with the performance of its duties hereunder, the Trustee shall be conclusively
presumed to be acting as agent for the Holders of the Notes with full and valid
authority so to act or refrain from acting, and the Pledgor may not make any
inquiry respecting that authority.
(3) No provision of this Security Agreement shall require either the
Trustee or the Securities Intermediary to expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties or the
exercise of any of its rights and powers hereunder.
Section 16.13 Removal or Resignation of the Securities
----------------------------------------
Intermediary. The Securities Intermediary may resign by notice to, or be removed
------------
by notice from, the Trustee at any time, except that in either case the
Securities Intermediary's duties hereunder shall not terminate until the Trustee
has appointed a successor Securities Intermediary, who has accepted the
appointment (by delivery of an agreement substantially in the form hereof), and
until all assets
15
held by the retiring Securities Intermediary have been transferred to the
successor Securities Intermediary in accordance with the Trustee's instruction.
Section 16.14 Final Expression. This Security Agreement,
----------------
together with the Indenture and any other agreement executed in connection
herewith, is intended by the parties as a final expression of this Security
Agreement and is intended as a complete and exclusive statement of the terms and
conditions thereof, subject to any amendment duly made in accordance herewith.
Section 16.15 CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF
----------------------------------------------------
JURY TRIAL; WAIVER OF DAMAGES.
-----------------------------
(1) THIS SECURITY AGREEMENT, THE SECURITIES ACCOUNT, AND THE
SECURITIES ENTITLEMENTS RELATED THERETO SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE NEW YORK PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW). ANY DISPUTE ARISING FROM, RELATED TO, OR
IN CONNECTION WITH ANY OF THE FOREGOING, OR THE RELATIONSHIP AMONG OR THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO, SHALL LIKEWISE BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION OF ANY OTHER AGREEMENT, FOR
PURPOSES OF THE UCC, NEW YORK SHALL BE DEEMED TO BE THE SECURITIES
INTERMEDIARY'S JURISDICTION.
(2) THE PLEDGOR AGREES THAT THE TRUSTEE MAY, IN ITS CAPACITY AS
TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, PROCEED AGAINST THE
PLEDGOR OR THE PLEDGED COLLATERAL IN ANY COURT HAVING PERSONAL OR IN REM
JURISDICTION OVER THE PLEDGOR OR THE PLEDGED COLLATERAL, AS THE CASE MAY BE, TO
ENABLE THE TRUSTEE TO ASSERT A CLAIM OR EXERCISE ITS RIGHTS AND REMEDIES UNDER
THIS SECURITY AGREEMENT. THE PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY
COUNTERCLAIM, SETOFF, OR CROSSCLAIM AGAINST THE TRUSTEE IN ANY PROCEEDING
BROUGHT BY THE TRUSTEE UNDER THIS SECURITY AGREEMENT OR THE INDENTURE OTHER THAN
A COUNTERCLAIM, SETOFF, OR CROSSCLAIM THAT, IF NOT ASSERTED IN THAT PROCEEDING,
COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR WAIVES ANY OBJECTION
BASED ON THE GROUNDS OF IMPROPER VENUE OR FORUM NON CONVENIENS TO THE TRUSTEE'S
COMMENCEMENT AND PROSECUTION OF SUCH A PROCEEDING IN ANY COURT IN THE CITY OF
NEW YORK.
(3) THE PLEDGOR AGREES THAT NEITHER ANY HOLDER OF NOTES, THE
TRUSTEE, THE SECURITIES INTERMEDIARY, OR ANY OTHER INDEMNIFIED
16
PERSON SHALL BE LIABLE TO THE PLEDGOR FOR LOSSES ARISING FROM, RELATING TO, OR
IN CONNECTION WITH THIS SECURITY AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREBY, OR THE DUTIES IMPOSED HEREUNDER, UNLESS A COURT DETERMINES (SUCH
DETERMINATION HAVING BECOME FINAL) THAT THE LOSSES RESULTED FROM THE BAD FAITH,
GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF THE HOLDER OF NOTES, THE TRUSTEE, THE
SECURITIES INTERMEDIARY, OR ANY INDEMNIFIED PERSON (AS THE CASE MAY BE).
(4) TO THE EXTENT PERMITTED BY LAW, THE PLEDGOR WAIVES THE POSTING
OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES IN
CONNECTION WITH ANY JUDICIAL PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER, ENTERED AGAINST THE PLEDGOR RELATING TO THIS SECURITY AGREEMENT OR ANY
RELATED AGREEMENT OR DOCUMENT OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS SECURITY
AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT AGAINST THE PLEDGOR.
17
IN WITNESS WHEREOF, the Pledgor, the Trustee and the Securities
Intermediary have each caused this Security Agreement to be duly executed and
delivered as of the date first above written.
Pledgor:
IWO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Trustee:
FIRSTAR BANK, N.A.,
as Trustee
By: /s/ Xxxxx X. Xxxxxx III
-----------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
Securities Intermediary:
FIRSTAR BANK, N.A.,
as Securities Intermediary
By: /s/ Xxxxx X. Xxxxxx III
-----------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
EXHIBIT A
CERTIFICATE
In accordance with Section 3(e) of the Security Agreement, dated as of
February 2, 2001 (the "Security Agreement"), by and among IWO Holdings, Inc.
(the "Pledgor"), Firstar Bank, N.A., as indenture trustee (the "Trustee") for
the holders of the Pledgor's 14% Senior Notes due 2011 (the "Notes"), and
Firstar Bank, N.A., as securities intermediary (the "Securities Intermediary"),
the undersigned officers of the Trustee and the Securities Intermediary, on
behalf of the Trustee and the Securities Intermediary respectively, hereby make
the following certifications to the Pledgor and the initial purchasers of the
Notes. Capitalized terms used and not defined in this certificate have the
meanings given them in the Security Agreement or in the documents referenced
therein.
1. Substantially contemporaneously with the execution and delivery
of this Certificate, the Trustee has established and will maintain the
Securities Account with the Securities Intermediary. The Securities Intermediary
has received $ from the net proceeds from the sale of the Notes
and has used those funds to purchase Pledged Securities (or intends to do so as
soon as practicable). The Securities Intermediary has made or will (upon
purchase of the Pledged Securities) make appropriate book entries in its records
establishing that the Pledged Securities and the Trustee's Securities
Entitlement thereto have been credited to and are held in the Securities
Account.
2. The Trustee has established and maintained and will maintain the
Securities Account, all Securities Entitlements thereto, and all rights with
respect to the Pledged Collateral solely in its capacity as Trustee and has not
asserted and will not assert any claim to or interest in the Pledged Collateral
except in that capacity.
3. The Trustee and the Securities Intermediary have acquired their
Security Entitlements to the Pledged Securities for value and without notice of
any adverse claim thereto. Without limiting the generality of the foregoing,
neither the Pledged Securities nor the Security Entitlements thereto of the
Securities Intermediary and the Trustee are, to their knowledge, subject to any
Lien granted by either of them in favor of any securities intermediary or any
other Person.
4. Each signatory represents and warrants that he or she is duly
authorized to execute this certificate.
A-1
IN WITNESS WHEREOF, the undersigned officers have executed this
Certificate on behalf of the Trustee and the Securities Intermediary,
respectively, this 2nd day of February 2001.
FIRSTAR BANK, N.A.,
As Trustee
By:____________________________________
Name:
Title:
FIRSTAR BANK, N.A.,
As Securities Intermediary
By:____________________________________
Name:
Title:
A-2
EXHIBIT B
---------
REQUEST FOR A CASH DISBURSEMENT
[Letterhead of IWO Holdings, Inc.]
[date]
Firstar Bank, N.A., Trustee
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Ladies and Gentlemen:
The undersigned refers to the Security and Control Agreement, dated
February 2, 2001 (the "Security Agreement") among the undersigned (the
"Pledgor") and you in your separate capacities as Trustee under the Indenture
identified in the Security Agreement's Recitals and as Securities Intermediary
under the Security Agreement. Capitalized terms not otherwise defined herein
have the meaning given them in the Security Agreement or, as applicable, in the
Indenture.
The undersigned hereby requests, in accordance with Section 6(a) of
the Security Agreement, that you cause sufficient assets in the Securities
Account to be liquidated to generate net proceeds of $__________ and that you
make available to the undersigned a Cash Disbursement (the "Cash Disbursement")
in that amount on ____________, ____, which day is a Business Day.
The undersigned hereby certifies that the representations and
warranties in the Security Agreement are true on the date hereof and will be
true on the date of the Cash Disbursement requested herein, and that no Event of
Default has occurred and is continuing on the date hereof.
B-1
The undersigned hereby further certifies that the Cash Disbursement
will be applied to the use and in the amount indicated below [check one]:
[ ] For the payment of interest on the Notes on the regular interest
payment date falling on ____________, ____, in the amount of
$_________. The proceeds of this Cash Disbursement Request should be
paid directly to you to be applied to that interest payment.
[ ] To fund a [Legal/Covenant] Defeasance, to occur on ________ __, ____.
The undersigned hereby certifies that all conditions precedent to the
[Legal/Covenant] Defeasance have been satisfied. The proceeds of this
Cash Disbursement Request should be paid directly to you to be applied
to that defeasance.
[ ] To be released to the Pledgor, because payment in full of the first
six scheduled interest payments on
the Notes has been made.
[ ] To be released to the Pledgor, because all Notes have been paid and
all obligations with respect to
the Notes have been discharged.
Very truly yours,
IWO HOLDINGS, INC.
By: ________________________________
Name:
Title:
Exhibit 4.7.doc
