Exhibit 4.7(g)
SUBORDINATION AGREEMENT
This Subordination Agreement made as of November 30, 2004 between
Xxxxxx Wireless Inc. (the "Company") and JPMorgan Chase Bank, N.A., as trustee
(the "Trustee"), under the Indenture (as defined below), JPMorgan Chase Bank,
N.A., as U.S. trustee and CIBC Mellon Trust Company, as Canadian trustee (each a
"Senior Debt Trustee", together the "Senior Debt Trustees") under an indenture
dated as of May 30, 1996 between the Company and the Senior Debt Trustees, as
trustees for the holders of 9 3/4% Senior Debentures due 2016 of the Company
issued under such indenture and outstanding from time to time and constituting
Senior Indebtedness (such holders being hereinafter called "holders of Senior
Indebtedness").
WITNESSES THAT WHEREAS:
A. The Company and the Trustee have entered into an indenture (the
"Indenture") dated as of November 30, 2004 providing for the issuance of 8.00%
Senior Subordinated Notes due 2012 of the Company (the "Securities"); and
B. As set forth in the Indenture and in the Securities, the Holders
have authorized the execution and delivery by the Trustee of this Agreement on
their behalf;
NOW THEREFORE for value received the parties agree as follows:
1. DEFINITIONS.
A capitalized term not defined in this Agreement has the meaning
ascribed to such term in the Indenture.
2. SUBORDINATION.
The Trustee, under the authority granted to it in the Indenture and
on behalf of and as agent for all Holders of outstanding Securities, and the
Company hereby covenant with the Senior Debt Trustees in their respective
capacities as trustees that the indebtedness represented by the Securities and
the payment of the principal of (and premium, if any) and interest on each and
all of the Securities delivered from time to time under the Indenture thereunder
are subordinate and subject in right of payment to the prior payment in full of
Senior Indebtedness to holders of Senior Indebtedness, in the manner, to the
extent and with the same effect as if the terms and provisions of the Indenture
were set forth herein.
3. PAYMENT TO THE COMPANY IN CERTAIN CIRCUMSTANCES.
Pursuant to Section 1207 of the Indenture, if a holder of Senior
Indebtedness or the Senior Debt Trustees shall receive in such capacity any
amount under this Agreement and at the time of receipt such holder or the Senior
Debt Trustees are not entitled to (whether by reason of maturity, acceleration
or otherwise) such amount under the terms of such Senior Indebtedness, then such
holder or the Senior Debt Trustees shall turn over such amount to the Company.
Any such amount so received by any holder of Senior Indebtedness or the Senior
Debt Trustees which such holder or the Senior Debt Trustees are so required to
turn over to the Company shall in no circumstances be considered to be a payment
on account of such Senior Indebtedness.
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4. BINDING EFFECT AND INUREMENT.
This Agreement shall be binding upon the successors of the Company
and the Trustee, and enure to the benefit of the successors of the Senior Debt
Trustees in their respective capacities as trustees.
5. NO WAIVER OR AMENDMENT.
No provision of this Agreement may be waived or amended except by an
instrument in writing signed by the party against whom the enforcement of any
waiver or amendment is sought.
6. NO PERSONAL LIABILITY.
The Trustee and the Senior Debt Trustees make no representation or
warranty as to the validity, sufficiency or effect of this Agreement, or as to
the authority of the Trustee or the Senior Debt Trustees, as the case may be, to
execute or deliver this Agreement. The Trustee and the Senior Debt Trustees
shall have no personal responsibility or liability with respect to the covenant
contained in Section 2 hereof.
7. COUNTERPARTS
This Agreement may be executed on any number of separate
counterparts and all said counterparts taken together shall be deemed to
constitute one and the same instrument.
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8. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
XXXXXX WIRELESS INC.
By: /s/ M. Xxxxxxxx Xxxx
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M. Xxxxxxxx Xxxx
Vice-President, Treasurer
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Vice-President
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Trust Officer
JPMORGAN CHASE BANK, N.A.,
AS SENIOR DEBT TRUSTEE
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Trust Officer
CIBC MELLON TRUST COMPANY,
AS SENIOR DEBT TRUSTEE
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Account Manager
By: /s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx
Associate Manager
