Exhibit 10.30E
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "AGREEMENT") is made and entered into as of
January 23, 1998 by RADIO MOVIL DIGITAL AMERICAS, INC, a Delaware corporation
(the "COMPANY"), in favor of BT FOREIGN INVESTMENT CORPORATION, in its
capacity as collateral agent under the Note Purchase Agreement, as
hereinafter defined (in such capacity, the "COLLATERAL AGENT").
W I T N E S S E T H:
WHEREAS, the Purchasers, as defined in the Note Purchase Agreement, are
committed to extending a credit facility (the "CREDIT FACILITY") to the
Company, provided that, among other things, the Company secures performance
of its obligations relating to the Credit Facility by pledging all of the
Company's right, title and interest in all of the loans and advances now made
to Brazilian Entities, as defined in the Purchase Agreement, and all such
loans and advances made during the term of the Credit Facility and while any
of the Secured Indebtedness is outstanding (the "PLEDGED LOANS");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following
terms shall have the meanings set forth below:
(a) The term "NOTE PURCHASE AGREEMENT" as used herein shall mean the
Amended and Restated Senior Secured Note Purchase Agreement, dated as of the
date hereof, by and among International Wireless Communications Holdings,
Inc., the Company and the Collateral Agent and the Purchasers, as defined
therein, as amended, supplemented, extended and modified from time to time
during the term hereof.
(b) The term "OBLIGOR" as used herein shall mean any Brazilian
Entity that is the obligor with respect to a Pledged Loan.
(c) The term "SECURED INDEBTEDNESS" as used herein shall mean the
Obligations, as defined in the Note Purchase Agreement.
(d) The term "SECURED PARTIES" as used herein shall mean the
Collateral Agent for itself and on behalf of the Purchasers.
(e) Other capitalized terms not defined herein which are defined in
the Note Purchase Agreement shall have the meanings ascribed thereto in the
Note Purchase Agreement.
2. PLEDGE. Company hereby pledges to the Collateral Agent, on behalf of
and for the benefit of the Secured Parties, and grants to the Collateral
Agent, on behalf of and for the
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benefit of the Secured Parties, a continuing first priority security interest
in all of its right, title and interest in the following (the "COLLATERAL"):
(a) the Pledged Loans and all notes and other instruments
representing the Pledged Loans, and all products and proceeds of any of the
Pledged Loans, including, without limitation, all interest, principal and
premium payments, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the Pledged Loans or any of the foregoing; and
(b) all additional loans and advances from time to time made by the
Company to the Brazilian Entities and held by the Company in any manner (any
such additional loans and advances shall constitute part of the Pledged Loans
under and as defined in this Agreement) and all products and proceeds of any
of such additional Pledged Notes, including, without limitation, all interest
and principal payments, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such additional Pledged Loans or any of the foregoing.
3. SECURITY FOR OBLIGATIONS. This Agreement secures the prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration, by repurchase or otherwise) of all Secured Indebtedness
(including, without limitation, the obligations accruing after the date of
any filing by the Company of any petition in bankruptcy or the commencement
of any bankruptcy, insolvency or similar proceeding with respect to the
Company).
4. DELIVERY OF COLLATERAL. The Company hereby agrees that all notes or
other instruments representing or evidencing the Collateral shall be
immediately delivered to and held at all times by the Collateral Agent
pursuant hereto at the Collateral Agent's office in the State of New York and
shall be in suitable form for transfer by delivery accompanied by instruments
of transfer or assignment duly executed in blank and undated, all in form and
substance satisfactory to the Collateral Agent. For all Pledged Loans that
are not evidenced by a note or other instrument, but are instead evidenced by
book entry in the Company's books and records, the Collateral Agent's
security interest therein shall be notated by book entry or in any other
appropriate manner that is acceptable to the Collateral Agent, so as to
properly identify the interest of the Collateral Agent therein. The
Collateral Agent shall have the right at any time to exchange notes or other
instruments representing or evidencing all or any portion of the Collateral
for notes or other instruments of smaller or larger principal amounts in the
same aggregate principal amount.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
that:
(a) The execution, delivery and performance by the Company of this
Agreement are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or bylaws of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the
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Company, or result in the creation or imposition of any Lien on any assets of
the Company, other than the Lien contemplated hereby.
(b) Each Pledged Loan has been duly authorized and entered into by
the Obligor thereof and constitutes a legal, valid and binding obligation of
such Obligor, enforceable against such Obligor in accordance with its terms.
(c) The Company is the legal, record and beneficial owner of the
Collateral, free and clear of any Lien or claims of any Person except for the
security interest created by this Agreement.
(d) The Company has full power and authority to enter into this
Agreement and has the right to pledge and grant a security interest in the
Collateral as provided by this Agreement.
(e) This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(f) Upon (i) the delivery to the Collateral Agent of the Collateral
to the extent that the Collateral consists of notes and other instruments and
(ii) the filing of a Uniform Commercial Code (the "UCC") financing statement
with the California Secretary of State's office, the pledge of the Collateral
pursuant to this Agreement creates a valid and perfected first priority
security interest in the Collateral, securing the payment of the Secured
Indebtedness for the benefit of the Secured Parties, and is enforceable as
such against all creditors of the Company and any Persons purporting to
purchase any of the Collateral from the Company.
(g) Except as has been already obtained, no consent of any other
Person and no consent, authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required either (i) for the pledge by the Company of the Collateral pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by the Company or (ii) for the exercise by the Collateral Agent of
the rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement.
(h) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best knowledge of
the Company, threatened by or against the Company or against any of its
properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby.
(i) The pledge of the Collateral pursuant to this Agreement is not
prohibited by any applicable law or governmental regulation, release,
interpretation or opinion of the Board of Governors of the Federal Reserve
System or other regulatory agency (including, without limitation, Regulations
G, T, U and X of the Board of Governors of the Federal Reserve System).
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(j) All information set forth herein relating to the Collateral is
accurate and complete in all material respects.
6. FURTHER ASSURANCE. The Company will at all times cause the security
interests granted pursuant to this Agreement to constitute valid perfected
first priority security interests in the Collateral, enforceable as such
against all creditors of the Company and (except as otherwise specifically
provided herein) any Persons purporting to purchase any Collateral from the
Company. The Company will, promptly upon request by the Collateral Agent,
execute and deliver or cause to be executed and delivered, or use its best
efforts to procure, all assignments, instruments and other documents, all in
form and substance satisfactory to the Collateral Agent, deliver any
instruments to the Collateral Agent and take any other actions that are
necessary or, in the reasonable opinion of the Collateral Agent, desirable to
perfect, continue the perfection of, or protect the first priority of the
Collateral Agent's security interest in, the Collateral, to protect the
Collateral against the rights, claims, or interests of third persons, to
enable the Collateral Agent to exercise or enforce its rights and remedies
hereunder, or otherwise to effect the purposes of this Agreement. The
Company also hereby authorizes the Collateral Agent to file any financing or
continuation statements with respect to the Collateral without the signature
of the Company to the extent permitted by applicable law (although the
Collateral Agent has no obligation to do so). The Company will pay all costs
incurred in connection with any of the foregoing. Promptly, upon request by
the Collateral Agent, the Company will provide the Collateral Agent with all
documents, instruments or information necessary, in the sole discretion of
the Collateral Agent, to satisfy its obligations under this Agreement.
7. PRINCIPAL AND INTEREST PAYMENTS.
(a) So long as no Event of Default or Potential Event of Default
shall have occurred and be continuing, but subject to compliance with the
Credit Facility and the Notes, the Company shall be entitled to receive, and
to utilize free and clear of the Lien of this Agreement, all cash payments of
principal and interest paid from time to time in respect of the Collateral so
long as the Collateral Agent is provided with evidence that the sole source
of the payments in respect of the Collateral are derived solely from Latin
American Non-Brazilian Entities.
(b) Upon the occurrence and during the continuance of an Event of
Default or a Potential Event of Default, all cash principal, interest and
other payments payable in respect of the Collateral shall be paid to the
Collateral Agent and the Company's right to receive such cash payments
pursuant to Section 7(a) hereof shall immediately cease.
(c) All payments that are received by the Company contrary to the
provisions of this Section 7 shall be received in trust for the benefit of
the Collateral Agent and the Secured Parties, shall be segregated from the
other property or funds of the Company and shall be forthwith delivered to
the Collateral Agent as Collateral in the same form as so received (with any
necessary endorsements) and may, in the Collateral Agent's sole discretion,
be applied to repayment of the Secured Indebtedness in accordance with
Section 15 hereof.
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8. COVENANTS. The Company covenants and agrees, from and after the date
of this Agreement and until the Secured Indebtedness has been paid in full,
as follows:
(a) The Company agrees that it will not (i) sell, assign, transfer,
convey or otherwise dispose of, or grant any option or warrant with respect
to, any of the Collateral without the prior written consent of the Collateral
Agent, (ii) create or permit to exist any Lien upon or with respect to any of
the Collateral, except for the security interest granted under this
Agreement, and at all times will be the sole beneficial owner of the
Collateral, (iii) enter into any agreement or understanding that purports to
or that may restrict or inhibit the Collateral Agent's rights or remedies
hereunder, including, without limitation, the Collateral Agent's right to
sell or otherwise dispose of the Collateral, (iv) take any action with
respect to the Collateral the taking of which would result in a violation of
the Note Purchase Agreement or this Agreement, or (v) fail to pay or
discharge any tax, assessment or levy of any nature not later than five days
prior to the date of any proposed sale under any judgment, writ or warrant of
attachment with regard to the Collateral.
(b) The Company agrees that immediately upon becoming the beneficial
owner of any Pledged Loans, whether or not evidenced by notes or other
instruments, it will pledge and deliver to the Collateral Agent for its
benefit and the ratable benefit of the Secured Parties and grant to the
Collateral Agent for its benefit and the ratable benefit of the Secured
Parties, a continuing first priority security interest in such Pledged Loans
(as well as instruments of transfer or assignment duly executed in blank and
undated, all in form and substance satisfactory to the Collateral Agent).
9. POWER OF ATTORNEY. In addition to all of the powers granted to the
Collateral Agent pursuant to the Note Purchase Agreement, the Company hereby
appoints and constitutes the Collateral Agent as the Company's
attorney-in-fact to exercise all of the following powers upon and at any time
after the occurrence of an Event of Default or, with respect to Section 7
hereof, a Potential Event of Default: (i) collection of proceeds of any
Collateral; (ii) conveyance of any item of Collateral to any purchaser
thereof; (iii) giving of any notices or recording of any Liens under Section
6 hereof; (iv) making of any payments or taking any acts under Section 10
hereof; and (v) paying or discharging taxes or Liens levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by the Collateral
Agent in its sole discretion, and such payments made by the Collateral Agent
to become the obligations of the Company to the Collateral Agent, due and
payable immediately without demand. The Collateral Agent's authority
hereunder shall include, without limitation, the authority to endorse and
negotiate, for the Collateral Agent's own account, any checks or instruments
in the name of the Company, execute and give receipt for any certificate of
ownership or any document, transfer title to any item of Collateral, sign the
Company's name on all financing statements or any other documents deemed
necessary or appropriate to preserve, protect or perfect the security
interest in the Collateral and to file the same, prepare, file and sign the
Company's name on any notice of Lien, and prepare, file and sign the
Company's name on a proof of claim in bankruptcy or similar document against
any creditor of the Company, and to take any other actions arising from or
incident to the powers granted to
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the Collateral Agent in this Agreement. This power of attorney is coupled
with an interest and is irrevocable by the Company.
10. COLLATERAL AGENT MAY PERFORM. If the Company fails to perform any
agreement contained herein, the Collateral Agent may itself perform, or cause
the performance of, such agreement, and the reasonable expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Company under Section 15 hereof; PROVIDED, HOWEVER, that the Collateral Agent
shall not be obligated to take any action under this Section 10 unless it is
instructed to do so by the Purchasers and it is indemnified against any
liability or loss in connection with taking such action by the Purchasers.
11. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The right and powers
granted to the Collateral Agent hereunder are being granted in order to
preserve and protect the Collateral Agent's and the Secured Parties' security
interest in and to the Collateral granted hereby and shall not be interpreted
to, and shall not, impose any duties on the Collateral Agent in connection
therewith. The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property, it being understood that the
Collateral Agent shall not have any responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not the
Collateral Agent has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any parties with
respect to any Collateral.
12. REMEDIES UPON DEFAULT
(a) If any Event of Default shall have occurred and be continuing,
the Collateral Agent and the Secured Parties shall have, in addition to all
other rights given by law or by this Agreement or the Note Purchase
Agreement, all of the rights and remedies with respect to the Collateral of a
secured party under the UCC as in effect in the State of New York at that
time. In addition, with respect to any Collateral that shall then be in or
shall thereafter come into the possession or custody of the Collateral Agent,
the Collateral Agent may sell or cause the same to be sold at any public or
private sale, in one or more sales or lots, at such price or prices as the
Collateral Agent may deem best, for cash or on credit or for future delivery,
without assumption of any credit risk. The purchaser of any or all
Collateral so sold shall thereafter hold the same absolutely, free from any
claim, encumbrance or right of any kind whatsoever. Unless any of the
Collateral threatens to decline speedily in value or is or becomes of a type
sold on a recognized market, the Collateral Agent will give the Company
reasonable notice of the time and place of any public sale thereof, or of the
time after which any private sale or other intended disposition is to be
made. Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial finance
companies, or other financial institutions disposing of property similar to
the Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to
the Company as provided below in Section 17.1, at least ten days before the
time of the sale or disposition. Any other requirement of notice, demand or
advertisement for sale is, to the extent
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permitted by law, waived. The Collateral Agent or any Secured Party may, in
its own name or in the name of a designee or nominee, buy any of the
Collateral at any public sale and, if permitted by applicable law, at any
private sale. All expenses (including court costs and reasonable attorneys'
fees and disbursements) of, or incident to, the enforcement of any of the
provisions hereof shall be recoverable from the proceeds of the sale or other
disposition of the Collateral.
(b) The Company further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this Section 12
valid and binding and in compliance with any and all other applicable
requirements of law. The Company further agrees that a breach of any of the
covenants contained in this Section 12 will cause irreparable injury to the
Collateral Agent and the Secured Parties, that the Collateral Agent and the
Secured Parties have no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section 12
shall be specifically enforceable against the Company, and the Company hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default
has occurred.
13. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO THE OBLIGORS. The
Company hereby authorizes and instructs each Obligor to comply with any
instruction received by the Obligor from the Collateral Agent that (i) states
that an Event of Default has occurred and (ii) is otherwise in accordance
with the terms of this Agreement, without any other or further instructions
from the Company, and the Company agrees that each Obligor shall be fully
protected in so complying.
14. FEES AND EXPENSES. The Company will upon demand pay to the
Collateral Agent the amount of any and all reasonable fees and expenses
(including, without limitation, the reasonable fees and disbursements of its
counsel, of any investment banking firm, business broker or other selling
agent and of any other experts and agents retained by the Collateral Agent)
that the Collateral Agent may incur in connection with (i) the administration
of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent and the
Secured Parties hereunder or (iv) the failure by the Company to perform or
observe any of the provisions hereof.
15. APPLICATION OF PROCEEDS. Upon the occurrence and during the
continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Collateral and any cash held shall
be applied by the Collateral Agent in the following order of priorities:
FIRST, to the Collateral Agent for the payment of the Secured
Indebtedness in the manner set forth in Section 8.6 of the Note Purchase
Agreement (which Secured Indebtedness shall include all of the expenses of
such sale or other realization, including reasonable compensation to agents
and counsel for the Collateral Agent, and all reasonable expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, and
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any other unreimbursed fees and expenses for which the Collateral Agent is to
be reimbursed pursuant to Section 14 hereof); and
SECOND, to payment to the Company or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
16. INTEREST ABSOLUTE. All rights of the Collateral Agent and the
Secured Parties and the security interests created hereunder, and all
obligations of the Company hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Note Purchase
Agreement or any other agreement or instrument evidencing or governing the
Secured Indebtedness;
(b) any change in the time, manner or place or payment of, or in
any other term of, all or any of the Secured Indebtedness, or any other
amendment or waiver of or any consent to any departure from the Note Purchase
Agreement;
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guarantee, for all or any of the Secured Indebtedness; or
(d) any other circumstances that might otherwise constitute a
defense available to, or a discharge of, the Company in respect of the
Secured Indebtedness or of this Agreement.
17. SUBORDINATION.
17.1 SUBORDINATION TO SENIOR INDEBTEDNESS.
(a) PAYMENT LIMITATIONS. The Company agrees for itself and its
successors and assigns that payment of the Pledged Loans is subordinated in
right of payment to the prior payment in full of the Secured Indebtedness on
the terms set forth herein.
(b) PERMITTED PAYMENTS. Notwithstanding the subordination of the
Pledged Loans to the Secured Indebtedness hereunder, (i) principal
installments of the Pledged Loans may be paid to the Company as they become
due and payable, without acceleration, in accordance with their terms, (ii)
accrued interest with respect to the Pledged Loans may be paid to the Company
as such interest becomes due and payable in accordance with their terms, and
(iii) other fees, expenses or other amounts payable under or with respect to
the Pledged Loans may be paid to the Company as such fees, expenses and
amounts become due and payable, without acceleration, in accordance with the
terms hereof, as amended from time to time in accordance with their terms,
provided that, in the case of each such Pledged Loans payment, on the date of
payment such payments are not prohibited pursuant to Section 17.3 and/or
Section 17.4.
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17.2 SUBORDINATION ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF AN
OBLIGOR.
(a) PRIORITY OF PAYMENT UPON DISTRIBUTION OF ASSETS. Upon any
Distribution of Assets in the event of any dissolution or winding up or total
or partial liquidation or reorganization, whether voluntary or involuntary,
or adjustment or protection or relief or composition of an Obligor or an
Obligor's debts, or in any bankruptcy, insolvency, receivership, arrangement,
reorganization, relief or other proceeding of an Obligor or upon an
arrangement for the benefit of creditors of an Obligor or any other
marshalling of the assets and liabilities of an Obligor:
(i) all amounts payable under or on account of the Secured
Indebtedness shall first be paid in full, in cash or payment provided for in
cash or Cash Equivalents, before the Company shall be entitled to receive any
Distribution of Assets with respect to the Pledged Loans; and
(ii) before any payment may be made on account of the Pledged
Loans, any such Distribution of Assets to which the Company would be
entitled, except for the provisions of this Section 17.2(a), shall be made
directly to Collateral Agent, for the Secured Parties, to the extent
necessary to pay all Secured Indebtedness in full, in cash or Cash
Equivalents, after giving effect to any concurrent payment or distribution to
the Collateral Agent and the Secured Parties. In the case of a non-cash
Distribution of Assets with respect to the Pledged Loans which is delivered
to Collateral Agent under this Section 17.2(a), the Secured Indebtedness
shall be deemed satisfied in the amount equal to the cash realized upon
disposition of such Distribution of Assets; until such disposition, the
non-cash Distribution of Assets shall be held as security for the Secured
Indebtedness.
(b) AUTHORIZATION OF COLLATERAL AGENT AND SECURED PARTIES. The
Collateral Agent and the Secured Parties are hereby irrevocably authorized
and empowered (in their own name or in the name of the Company or otherwise),
but shall have no obligation, to demand, xxx for, collect and receive every
Distribution of Assets and give acquittance therefor and to file claims and
proofs of claim in respect of the Pledged Loans and take such other action
(including, without limitation, voting the Pledged Loans) on behalf of the
Company as they may reasonably deem necessary or advisable for the exercise
or enforcement of any of their rights or interests hereunder if the Company
does not take such actions within a reasonable period of time after the
Collateral Agent's or the Secured Parties' request. The Company shall duly
and promptly take such action as the Collateral Agent or the Secured Parties
may reasonably request (A) to collect the Pledged Loans for the account of
Secured Parties and to file appropriate claims or proofs of claim in respect
of the Pledged Loans, (B) to execute and deliver to the Collateral Agent and
the Secured Parties such powers of attorney, assignments, or other
instruments as they may request in order to enable them to enforce any and
all claims with respect to the Pledged Loans, and (C) to collect and receive
any and all Distribution of Assets which may be payable or deliverable upon
or with respect to the Pledged Loans.
17.3 SUBORDINATION ON EVENT OF DEFAULT. If there has occurred and is
continuing an Event of Default, the Company may not receive payment under or
on account of the Pledged
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Loans, directly or indirectly, in cash or other property or by set-off or in
any other manner, for the period commencing on the date of occurrence of such
Event of Default and continuing until the earlier of (1) the waiver of the
Event of Default, or (2) the cure of the Event of Default (the "STANDSTILL
PERIOD"). Immediately following the expiration of any such Standstill
Period, all payments of Pledged Loans which, but for such suspension, the
Company would have been entitled to receive, shall be immediately due and
payable.
17.4 FORBEARANCE BY THE COMPANY. Until the Secured Indebtedness is paid
in full, in cash or Cash Equivalents, and the Note Purchase Agreement is
terminated or expires, or unless requested by the Collateral Agent, the
Company shall not, without Collateral Agent's prior written consent, given in
its sole discretion: (i) accelerate the maturity of the Pledged Loans, (ii)
assert, collect or enforce the Pledged Loans or exercise any right of
set-off, or (iii) commence, or cause to commence, prosecute or participate in
(other than participate in an action, once commenced, to protect and pursue
its rights and remedies as, for example, exercising its rights in a
bankruptcy proceeding or state receivership proceeding) any administrative,
legal or equitable action against an Obligor or any administrative, legal or
equitable action that might adversely affect an Obligor or its interest,
including, but not limited to, the entry of a decree or order for relief in
respect of an Obligor under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of an Obligor or for any substantial part of an Obligor's
assets.
17.5 SUBROGATION. Subject to the payment in full of all Secured
Indebtedness in cash or Cash Equivalents, the Company shall be subrogated to
the Secured Parties' rights (to the extent of the payments or distributions
made to the Secured Parties pursuant to the provisions of this Section 17) to
receive payments and Distributions of Assets applicable to the Secured
Indebtedness. No such payments or Distributions of Assets applicable to the
Secured Indebtedness shall, as between an Obligor and its creditors, other
than the Secured Parties and the Company, be deemed to be a payment by an
Obligor to or on account of the Secured Indebtedness; and for purposes of
such subrogation, no payments or Distributions of Assets to the Secured
Parties to which the Company would be entitled except for the provisions of
this Section 17 shall, as between an Obligor and its creditors, other than
the Secured Parties and the Company, be deemed to be a payment by an Obligor
to or on account of the Secured Indebtedness.
17.6 NO IMPAIRMENT. Nothing contained in this Section 17 shall impair,
as between an Obligor and the Company, the obligation of such Obligor,
subject to the terms and conditions of this Section 17, to pay to the Company
the Pledged Loans of such Obligor as and when the same become due and payable.
17.7 NO IMPAIRMENT OF SUBORDINATION. No right of any present or future
Secured Parties to enforce the subordination provisions of this Section 17
shall at any time in any way be prejudiced or impaired by any act or failure
to act on an Obligor's part or by any act or failure to act, in good faith,
by such Secured Parties, or by any noncompliance by an Obligor with the
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terms, provisions and covenants of this Note or the Purchase Agreement,
regardless of any knowledge thereof which such Secured Parties may have or
otherwise be charged with.
17.8 DISGORGEMENT. If, at any time after payment in full of the Secured
Indebtedness any payments of the Secured Indebtedness must be disgorged by
the Secured Parties for any reason (including, without limitation, an
Obligor's bankruptcy), the relative rights and priorities set forth herein
shall be reinstated as to all such disgorged payments as though such payments
had not been made and the Company shall immediately pay over to the
Collateral Agent, for the Secured Parties, all payments received with respect
to the Pledged Loans to the extent that such payments would have been
prohibited hereunder.
17.9 DEFINITIONS. For purposes of this Section 17, the following terms
shall have the following meanings:
"CASH EQUIVALENTS": the net current cash value of (i) obligations issued
or guaranteed by the United States of America; (ii) certificates of deposit,
bankers' acceptances and other "money market instruments" issued by any bank
or trust company organized under the laws of the United States of America or
any state thereof and having capital and surplus of an aggregate amount not
less than One Hundred Million Dollars ($100,000,000); (iii) open market
commercial paper bearing the highest credit rating issued by Standard &
Poor's Corp. or by another nationally recognized credit rating firm; and (iv)
shares of "money market funds," each having net assets of not less than Five
Hundred Million Dollars ($500,000,000).
"DISTRIBUTION OF ASSETS": any distribution of an Obligor's assets of any
kind or character, whether in cash, property, or securities, and whether in
respect of repayment of indebtedness or otherwise, including, but not limited
to, adequate protection payments under the Bankruptcy Code.
18. MISCELLANEOUS PROVISIONS.
18.1 NOTICES. All notices, demands, and other communications required or
desired to be given hereunder shall be in writing and shall be deemed to have
been given when delivered personally to the recipient, sent to the recipient
by reputable overnight courier service (charges prepaid) or mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications shall be sent
to the Company, the Collateral Agent and to each Purchaser at the addresses
set forth in Section 8.13 of the Note Purchase Agreement.
18.2 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Agreement may
not be used to interpret another pledge, security or debt agreement of the
Company or any subsidiary thereof. No such pledge, security or debt
agreement may be used to interpret this Agreement.
18.3 SEVERABILITY. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or
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part thereof, and shall not in any manner affect such clause or provision in
any other jurisdiction or any other clause or provision of this Agreement in
any jurisdiction.
18.4 NO RECOURSE AGAINST OTHERS. No director, officer, employee,
stockholder or affiliate, solely in such capacity, of the Company or any an
Obligor shall have any liability for any obligations of the Company under
this Agreement or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Secured Party hereby waives and releases
all such liability.
18.5 HEADINGS. The headings of the Articles and Sections of this
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
18.6 COUNTERPART ORIGINALS. This Agreement may be signed in two or more
counterparts. Each signed copy shall be an original, but all of them
together represent one and the same agreement. Each counterpart may be
executed and delivered by telecopy, if such delivery is promptly followed by
the original manually signed copy sent by overnight courier.
18.7 BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Secured Parties, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
18.8 AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver of any
provision of this Agreement and any consent to any departure by the Company
from any provision of this Agreement shall be effective only if the Company
has obtained the written consent of the holders of a majority of the
outstanding principal amount of the Notes (which majority shall include BTFIC
as long as it holds any Notes). Failure of the Collateral Agent or any
Secured Party to exercise, or delay in exercising, any right, power or
privilege hereunder shall not operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Collateral Agent or any Secured Party of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that the Collateral Agent or such Secured Party
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
18.9 INTERPRETATION OF AGREEMENT. Time is of the essence in each
provision of this Agreement of which time is an element. To the extent a
term or provision of this Agreement conflicts with the Note Purchase
Agreement and is not dealt with herein with more specificity, the Note
Purchase Agreement shall control with respect to the subject matter of such
term or provision. Acceptance of or acquiescence in a course of performance
rendered under this Agreement shall not be relevant to determine the meaning
of this Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
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18.10 CONTINUING SECURITY INTEREST; TRANSFER OF SECURITIES. This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the payment in full of all
the Secured Indebtedness, (ii) be binding upon the Company, its successors
and assigns, and (iii) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent, the
Secured Parties and their respective successors, transferees and assigns.
18.11 REINSTATEMENT. This Agreement shall continue to be effective or be
reinstated if at any time any amount received by the Collateral Agent or any
Secured Party in respect of the Secured Indebtedness is rescinded or must
otherwise be restored or returned by the Collateral Agent or any Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Company or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
18.12 SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of the Company contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and final
payment and performance by the Company of the Secured Indebtedness.
18.13 WAIVERS. The Company waives presentment and demand for payment of
any of the Secured Indebtedness, protest and notice of dishonor or default
with respect to any of the Secured Indebtedness, and all other notices to
which the Company might otherwise be entitled, except as otherwise expressly
provided herein.
18.14 AUTHORITY OF THE COLLATERAL AGENT.
(a) The Collateral Agent shall have and be entitled to exercise
all powers hereunder that are specifically granted to the Collateral Agent by
the terms hereof, together with such powers as are reasonably incident
thereto. The Collateral Agent may perform any of its duties hereunder or in
connection with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Neither the Collateral Agent nor any director,
officer, employee, attorney or agent of the Collateral Agent shall be
responsible for the validity, effectiveness or sufficiency hereof or of any
document or security furnished pursuant hereto. The Collateral Agent and its
directors, officers, employees, attorneys and agents shall be entitled to
rely on any communication, instrument or document believed by it or them to
be genuine and correct and to have been signed or sent by the proper person
or persons. The Company agrees to indemnify and hold harmless the Collateral
Agent, the Secured Parties and any other Person specified above from and
against any and all costs, expenses (including the reasonable fees and
disbursements of counsel (including, the allocated costs of counsel)), claims
and liabilities incurred by the Collateral Agent, the Secured Parties or any
such Person hereunder, unless such claim or liability shall be due to willful
misconduct or gross negligence on the part of the Collateral Agent, the
Secured Parties or such Person.
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(b) The Company acknowledges that the rights and responsibilities
of the Collateral Agent under this Agreement with respect to any action taken
by the Collateral Agent or the exercise or non-exercise by the Collateral
Agent of any option, right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Agreement shall, as
between the Collateral Agent and the Secured Parties, be governed by the Note
Purchase Agreement and by such other agreements with respect thereto as may
exist form time to time among them, but, as between the Collateral Agent and
the Company, the Collateral Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and the Company shall not be obligated or entitled to
make any inquiry respecting such authority.
18.15 RESIGNATION OR REMOVAL OF THE COLLATERAL AGENT. Until such time
as the Secured Indebtedness shall have been paid in full, the Collateral
Agent may at any time, by giving written notice to the Company and Secured
Parties, resign and be discharged of the responsibilities hereby created,
such resignation to become effective upon (i) the appointment of a successor
Collateral Agent and (ii) the acceptance of such appointment by such
successor Collateral Agent. As promptly as practicable after the giving of
any such notice, the Secured Parties shall appoint a successor Collateral
Agent, which successor Collateral Agent shall be reasonably acceptable to the
Company. If no successor Collateral Agent shall be appointed and shall have
accepted such appointment within 90 days after the Collateral Agent gives the
aforesaid notice of resignation, the Collateral Agent may apply to any court
of competent jurisdiction to appoint a successor Collateral Agent to act
until such time, if any, as a successor shall have been appointed as provided
in this Section 18.15. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor Collateral
Agent appointed by the Secured Parties, as provided in this Section 18.15.
Simultaneously with its replacement as Collateral Agent hereunder, the
Collateral Agent so replaced shall deliver to its successor all documents,
instruments, certificates and other items of whatever kind (including,
without limitation, the certificates and instruments evidencing the
Collateral and all instruments of transfer or assignment) held by it pursuant
to the terms hereof. The Collateral Agent that has resigned shall be
entitled to fees, costs and expenses to the extent incurred or arising, or
relating to events occurring, before its resignation or removal.
18.16 RELEASE OF COLLATERAL; TERMINATION OF AGREEMENT.
(a) Subject to the provisions of Section 18.11 hereof, this
Agreement shall terminate upon the full and final payment and performance of
the Secured Indebtedness (and upon receipt by the Collateral Agent of the
Company's written certification that all such Secured Indebtedness has been
satisfied) and payment in full of all fees and expenses owing by the Company
to the Collateral Agent. At such time, the Collateral Agent shall, at the
request of the Company, reassign and redeliver to the Company all of the
Collateral hereunder that has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to the
Collateral Agent, except as to the absence of any prior assignments by the
Collateral Agent of its interest in the Collateral, and shall be at the
expense of the Company.
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(b) The Company agrees that it will not, except as permitted by
the Note Purchase Agreement, sell or dispose of, or grant any option or
warrant with respect to, any of the Collateral.
18.17 FINAL EXPRESSION. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a
final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
18.18 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
WAIVER OF DAMAGES.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER
THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
COMPANY, THE COLLATERAL AGENT AND THE SECURED PARTIES IN CONNECTION WITH THIS
AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL
BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAWS PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
(ii) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH AND IN
PARAGRAPH (vi) BELOW, THE COMPANY, THE COLLATERAL AGENT AND THE SECURED
PARTIES AGREE THAT ALL DISPUTES BETWEEN OR AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR
FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK. THE COMPANY WAIVES IN ALL
DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(iii) THE COMPANY AGREES THAT THE COLLATERAL AGENT SHALL, IN
ITS OWN NAME OR IN THE NAME AND ON BEHALF OF ANY SECURED PARTY, HAVE THE
RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE
COMPANY OR ITS PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN
GOOD FAITH TO ENABLE THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL
AGENT. THE COMPANY WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH THE COLLATERAL AGENT HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
15
(iv) THE COMPANY, THE COLLATERAL AGENT AND THE SECURED
PARTIES EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(v) THE COMPANY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH IN SECTION 18.1 HEREOF, SUCH
SERVICE TO BECOME EFFECTIVE FIVE (5) BUSINESS DAYS AFTER SUCH MAILING.
(vi) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT OR ANY SECURED PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY
IN ANY OTHER JURISDICTION.
(vii) THE COMPANY HEREBY AGREES THAT NEITHER THE COLLATERAL
AGENT NOR ANY SECURED PARTY SHALL HAVE ANY LIABILITY TO THE COMPANY (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE COMPANY
IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT,
OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS
DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING
ON THE COLLATERAL AGENT OR SUCH SECURED PARTY, AS THE CASE MAY BE, THAT SUCH
LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL
AGENT OR SUCH SECURED PARTY, AS THE CASE MAY BE, CONSTITUTING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(viii) THE COMPANY WAIVES ALL RIGHTS OF NOTICE AND HEARING OF
ANY KIND PRIOR TO THE EXERCISE BY THE COLLATERAL AGENT OR ANY SECURED PARTY
OF ITS RIGHTS DURING THE CONTINUANCE OF AN EVENT OF DEFAULT TO REPOSSESS THE
COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. THE COMPANY WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY SECURED
PARTY DURING THE CONTINUANCE OF AN EVENT OF DEFAULT IN CONNECTION WITH ANY
JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF, REPLEVY, ATTACH OR
LEVY UPON COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY
JUDGMENT OR OTHER COURT ORDER ENTERED
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IN FAVOR OF THE COLLATERAL AGENT OR ANY SECURED PARTY, OR TO ENFORCE BY
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT
INJUNCTION THIS AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE
COMPANY, THE COLLATERAL AGENT AND THE SECURED PARTIES.
18.19 ACKNOWLEDGMENTS OF COMPANY. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship to the Company, and the relationship between the
Collateral Agent and the Secured Parties, on the one hand, and the Company,
on the other hand, is solely that of a secured party and a creditor; and
(c) no joint venture exists among the Secured Parties or among the
Company and the Secured Parties.
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[Pledge Agreement Signature Page]
IN WITNESS WHEREOF, the Company and the Collateral Agent have each
caused this Agreement to be duly executed and delivered as of the date first
above written.
RADIO MOVIL DIGITAL AMERICAS, INC.,
a Delaware corporation
By: _________________________________
Name:
Title:
COLLATERAL AGENT:
BT FOREIGN INVESTMENT CORPORATION,
as Collateral Agent
By: _________________________________
Name:
Title:
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