IWC PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated June 5, 1997 made by International
Wireless Communications, Inc., a corporation organized under the laws of
Delaware (the "PLEDGOR"), in favor of the Lender (as defined in the Credit
Agreement referred to below).
PRELIMINARY STATEMENT. The Lender is party to the Bridge Loan
Agreement, dated as of May 16, 1997 (said Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with STAR DIGITEL LIMITED, a
corporation organized under the laws of Hong Kong (the "BORROWER"). It is a
condition precedent to the making of Advances under the Credit Agreement that
the Pledgor shall have executed and delivered this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender to make Advances under the Credit Agreement from time to
time, the Pledgor hereby agrees as follows:
Section 1. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby
represents and warrants as follows:
(a) DUE INCORPORATION, ETC. The Pledgor (i) is duly organized,
validly existing and in good standing under the laws of Delaware, (ii) is
duly authorized to do business in each jurisdiction in which such
authorization is required by law or in which the failure to be so authorized
would not have material adverse effect on (x) the business, condition
(financial or otherwise), operation, performance or properties of the Pledgor
and its subsidiaries, taken as a whole, (y) the rights and remedies of the
Lender under this Pledge Agreement, or (z) the ability of the Pledgor to
perform its obligations under this Pledge Agreement (each, a "MATERIAL
ADVERSE EFFECT"), and (iii) has all requisite power and authority to own or
hold under lease and to operate all of its property and assets.
(b) CORPORATE POWER, ETC. The Pledgor has full corporate power and
authority to enter into, deliver and perform its obligations under this
Pledge Agreement and to consummate each of the transactions contemplated
hereby, and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Pledge Agreement. This
Pledge Agreement constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
(c) NO CONFLICT. Neither the execution and delivery of this Pledge
Agreement nor the performance by the Pledgor of its obligations hereunder,
nor the consummation of the transactions contemplated hereby will,
(i) conflict with the certificate of incorporation or by-laws of the Pledgor,
or (ii) conflict with or result in a breach of, or constitute a default
under, or result in the creation or imposition of any Lien upon, any of the
property or assets of the Pledgor under, any applicable laws (including,
without limitation, Regulation X issued by the Board of Governors of the
Federal Reserve System) or any indenture, mortgage, deed of trust or other
instrument or agreement to which the Pledgor may be or become a party or by
which it may be or become bound or to which any of the property or assets of
the Pledgor may be subject.
(d) APPROVALS, ETC. No order, license, consent, authorization or
approval of, or exemption by, or notice to or registration with, any
governmental authority or regulatory body, and no filing, recording,
publication or registration in any public office or any other place, is
required in connection with the execution, delivery and performance by the
Pledgor of this Pledge Agreement, or for the legality, validity, binding
effect or enforceability thereof.
(e) OWNERSHIP OF SHARES. Pledgor owns beneficially 231.9 million
shares of the Borrower (the "PLEDGOR SHARES") representing 40.35% of the
issued and outstanding shares of the Borrower. The Pledgor owns the Pledgor
Shares free and clear of any encumbrance.
Section 2. AFFIRMATIVE COVENANTS. The Pledgor covenants and agrees
that, so long as any part of obligations of the Borrower under the Credit
Agreement shall remain unpaid or the Lender shall have any Commitment
thereunder, the Pledgor will, unless the Lender shall otherwise consent in
writing:
(a) CORPORATE EXISTENCE. Preserve and maintain in full force and
effect its corporate existence, rights (charter and statutory), franchises
and privileges and qualify and remain qualified, as a corporation in good
standing in each jurisdiction in which such qualification is from time to
time necessary or desirable in view of its business and operations or the
ownership of its properties, except for such jurisdictions where the failure
to so qualify would not have a Material Adverse Effect; PROVIDED, HOWEVER,
that the Pledgor shall not be required to preserve any right, privilege or
franchise if the Board of Directors thereof shall determine in good faith
that such right, privilege or franchise is no longer useful in the conduct of
the business of the Pledgor, and the loss thereof is not disadvantageous in
any material respect to the Lender.
(b) COMPLIANCE WITH LAWS. Comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, except where the failure to so
comply would not have a Material Adverse Effect.
(c) REFINANCING. Use its commercially reasonable efforts to cause
the Borrower to complete the Refinancing prior to the Final Maturity Date,
which Refinancing shall yield an amount sufficient to repay the aggregate
unpaid principal amount of the Advances in full PLUS accrued interest thereon
to the date of repayment and all other amounts payable under the Loan
Documents.
Section 3. NEGATIVE COVENANTS. (a) The Pledgor covenants and
agrees that, so long as any part of the obligations of the Borrower under the
Credit Agreement shall remain unpaid, or the Lender shall have any Commitment
thereunder, the Pledgor will not, without the prior written consent of the
Lender, dispose of any shares of capital stock of the Borrower or any
warrants, rights or options to acquire such capital stock, if, as a result of
such disposal, the Pledgor and STHL shall in the aggregate retain possession
of, or the right, directly or indirectly, to vote less than 75% of the Shares
or the ability to direct or to cause the direction of the management and
policies of the Borrower, whether through the ownership of Shares, by
contract or otherwise.
(b) Enter into or suffer to exist any agreement prohibiting or
conditioning the creation or assumption of any Lien upon the Pledgor Shares.
Section 4. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Pledge Agreement and no consent to any departure by the
Pledgor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
Section 5. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy
or telex communication) and mailed, telegraphed, telecopied, telexed or
delivered if to the Pledgor, at its address at 000 Xxxxx Xx Xxxxxx Xxxx,
xxxxx 0000, Xxx Xxxxx, XX 00000, Attention: Xx. Xxxxxxx Xxxxxxxx, Telecopier
000-000-0000 and if to the Lender at its address at 0 Xxxxxxx Xxxxxx #00-00
Xxxxxxxx Xxxxx, Xxxxxxxxx 000000, Attention: Xx. Xxxxx X. Xxxxxx. All such
notices and other communications shall, when mailed, telegraphed, telecopied
or telexed, be effective when deposited in the mails, delivered to the
telegraph company, transmitted by telecopier or confirmed by telex
answerback, respectively.
Section 6. NO WAIVER; REMEDIES. No failure on the part of the
Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7. CONTINUING AGREEMENT; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT. This Pledge Agreement is a continuing obligation of the Pledgor
and shall (a) remain in full force and effect until the payment in full in
cash of all amounts due under the Credit Agreement, (b) be binding upon the
Pledgor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lender and their successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), the Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement (including, without limitation, all or any portion
of the Commitment, the Advances owing to it and the Note held by it) to any
other Person, and such other Person shall thereupon become vested with all
the benefits in
respect thereof granted to the Lender herein or otherwise, in each case as
and to the extent provided under the Credit Agreement.
Section 8. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC.
(a) This Pledge Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) The Pledgor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Pledge Agreement, or for
recognition or enforcement of any judgment, and the Pledgor hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. The Pledgor
agrees that process served either personally or by registered mail, return
receipt requested, shall, to the extent permitted by law, constitute adequate
service of process in any such proceeding. Without limiting the foregoing,
the Pledgor hereby appoints, in the case of any such action or proceeding
brought in the courts of or in the State of New York, CT Corporation System,
with offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
to receive, for them and on their behalf, service of process in the State of
New York with respect thereto, PROVIDED that the Pledgor may appoint any
other person, with offices in the State of New York to replace such agent for
service of process upon delivery to each other Loan Party notice thereof.
The Pledgor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Pledge
Agreement shall affect any right that any Loan Party may otherwise have to
bring any action or proceeding relating to this Pledge Agreement in the
courts of any jurisdiction.
(c) The Pledgor hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Pledge Agreement in any
New York State or federal court. The Pledgor hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) The Pledgor hereby waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Pledge Agreement, any document
delivered under this Pledge Agreement, any Advance or the actions of the
Lender in the negotiations, administration, performance or enforcement hereof.
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
INTERNATIONAL WIRELESS
COMMUNICATIONS, INC.
By
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