AMENDED AND RESTATED NEGATIVE PLEDGE AGREEMENT
THIS AMENDED AND RESTATED NEGATIVE PLEDGE AGREEMENT dated as of
September 18, 1997 (the "AMENDED AND RESTATED PLEDGE AGREEMENT") made by
International Wireless Communications, Inc., a corporation organized under
the laws of Delaware ("IWC INC.") and IWC China Limited, a Mauritius
corporation ("IWC CHINA"), in favor of the Lender (as defined in the Credit
Agreement referred to below).
WHEREAS, the Lender is party to the Bridge Loan Agreement, dated as
of May 16, 1997, as amended by the Waiver Agreement, dated July 10, 1997
(said Agreement, as it is now and 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"),
WHEREAS, the Borrower desires to enter into a Bridge Loan Agreement
Supplement No. 1, dated as of September 18, 1997, which amends and
supplements the Credit Agreement, pursuant to which the Borrower is
requesting that the Lender provide up to an additional $10,000,000 under the
Bridge Loan Agreement as set forth therein,
WHEREAS, this Amended and Restated Pledge Agreement amends and
restates in its entirety and replaces and supersedes the IWC Pledge
Agreement, dated as of June 5, 1997 made by IWC Inc. in favor of the Lender,
and
WHEREAS, it is a condition precedent to the making of First
Supplemental Advances under the Bridge Loan Agreement Supplement No. 1 that
the parties hereto shall have executed and delivered this Amended and
Restated Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender to make First Supplemental Advances under the Credit
Agreement from time to time, IWC Inc. and IWC China hereby agrees as follows:
Section 1. REPRESENTATIONS AND WARRANTIES. IWC Inc. hereby
represents and warrants as follows:
(a) DUE INCORPORATION, ETC. IWC Inc. (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 IWC Inc.
and its subsidiaries, taken as a whole, (y) the rights and remedies of the
Lender under this Amended and Restated Pledge Agreement, or (z) the ability
of IWC Inc. to perform its obligations under this Amended and
Restated Pledge Agreement (each, an "IWC INC. 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. IWC Inc. has full corporate power and
authority to enter into, deliver and perform its obligations under this
Amended and Restated 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
Amended and Restated Pledge Agreement. This Amended and Restated Pledge
Agreement constitutes the legal, valid and binding obligation of IWC Inc.,
enforceable against IWC Inc. 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
Amended and Restated Pledge Agreement nor the performance by IWC Inc. of its
obligations hereunder, nor the consummation of the transactions contemplated
hereby will, (i) conflict with the certificate of incorporation or by-laws of
IWC Inc., 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 IWC Inc. 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 IWC Inc. 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
IWC Inc. 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 IWC
Inc. of this Amended and Restated Pledge Agreement, or for the legality,
validity, binding effect or enforceability thereof.
(e) OWNERSHIP OF SHARES. IWC China owns beneficially 85,030,000
shares of the Borrower (the "IWC SDL Shares") representing 40% of the issued
and outstanding shares of the Borrower, free and clear of any encumbrances,
other than the Lien created pursuant to the Pledge Agreement, to be dated as
of September 18, 1997, by and between IWC China and Vanguard Cellular
Financial Corp. ("VCFC"), a North Carolina corporation (the "IWC/VCFC PLEDGE
AGREEMENT") and the Amended and Restated Shareholders' Agreement dated as of
April 4, 1997 among the Borrower and its Shareholders (the "SHAREHOLDERS'
AGREEMENT").
Section 2. REPRESENTATIONS AND WARRANTIES. IWC China hereby
represents and warrants as follows:
(a) DUE INCORPORATION, ETC. IWC China (i) is duly organized,
validly existing and in good standing under the laws of Mauritius, (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 IWC China and its subsidiaries, taken as a whole, (y) the
rights and remedies of the Lender under this Amended and Restated Pledge
Agreement, or (z) the ability of IWC China to perform its obligations under
this Amended and Restated Pledge Agreement (each, an "IWC CHINA 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. IWC China has full corporate power and
authority to enter into, deliver and perform its obligations under this
Amended and Restated 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
Amended and Restated Pledge Agreement. This Amended and Restated Pledge
Agreement constitutes the legal, valid and binding obligation of IWC China,
enforceable against IWC China 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
Amended and Restated Pledge Agreement nor the performance by IWC China of its
obligations hereunder, nor the consummation of the transactions contemplated
hereby will, (i) conflict with the certificate of incorporation or by-laws or
other similar organizational documents of IWC China, 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 IWC
China 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
IWC China 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 IWC China 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 IWC
China of this Amended and Restated Pledge Agreement, or for the legality,
validity, binding effect or enforceability thereof.
(e) OWNERSHIP OF SHARES. IWC China owns beneficially the IWC SDL
Shares, free and clear of any encumbrances, other than the Lien created
pursuant to the IWC/VCFC Pledge Agreement and the Shareholders' Agreement.
Section 3. AFFIRMATIVE COVENANTS. Each of IWC Inc. and IWC China
covenants and agrees that, so long as any part of obligations of the Borrower
under the Credit Agreement or the Bridge Loan Agreement Supplement No. 1
shall remain unpaid or the Lender shall have any
Commitment thereunder, each of IWC Inc. and IWC China 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 an IWC Inc. Material Adverse Effect or an IWC
China Material Adverse Effect, as the case may be; PROVIDED, HOWEVER, that
neither IWC Inc. nor IWC China shall 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 each of IWC Inc. or IWC China, as the case may be,
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 an IWC Inc. Material Adverse Effect or an IWC China
Material Adverse Effect, as the case may be.
(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 4. NEGATIVE COVENANTS. Except as otherwise provided by the
IWC/VCFC Pledge Agreement and the Reimbursement Agreement, dated as of
September 18, 1997, between IWC China and VCFC, each of IWC Inc. and IWC
China covenants and agrees that, so long as any part of the obligations of
the Borrower under the Credit Agreement or the Bridge Loan Agreement
Supplement No. 1 shall remain unpaid, or the Lender shall have any First
Supplemental Commitment thereunder, each of IWC Inc. and IWC China will not,
without the prior written consent of the Lender, (a) 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, IWC Inc., IWC China and
STHL shall in the aggregate retain possession of, or the right, directly or
indirectly, to vote less than 75% of the shares of the Borrower or the
ability to direct or to cause the direction of the management and policies of
the Borrower, whether through the ownership of shares of the Borrower, by
contract or otherwise or (b) enter into or suffer to exist any agreement
prohibiting or conditioning the creation or assumption of any Lien upon the
IWC SDL Shares.
Section 5. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Amended and Restated Pledge Agreement and no consent to any
departure by either IWC Inc. or IWC China 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 6. 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 IWC Inc. or IWC China, 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 7. 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 8. CONTINUING AGREEMENT; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT. This Amended and Restated Pledge Agreement is a continuing
obligation of each of IWC Inc. and IWC China and shall (a) remain in full
force and effect until the payment in full in cash of all amounts due under
the Credit Agreement and the Bridge Loan Agreement Supplement No. 1, (b) be
binding upon each of IWC Inc. and IWC China, their 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, as amended
and supplemented by the Bridge Loan Agreement Supplement No. 1 (including,
without limitation, all or any portion of the Commitment and the First
Supplemental Commitment, the Advances and the First Supplemental Advances
owing to it the Note and the First Supplemental 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, as
amended and supplemented by the Bridge Loan Agreement Supplement No. 1.
Section 9. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC.
(a) This Amended and Restated Pledge Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
(b) Each of IWC Inc. and IWC China 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
Amended and Restated Pledge Agreement, or for recognition or enforcement of
any judgment, and each of IWC Inc. and IWC China 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.
Each of IWC Inc. and IWC China 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, each of IWC Inc. and IWC China
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 each of IWC Inc. and IWC China 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.
Each of IWC Inc. and IWC China 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 Amended and Restated Pledge Agreement shall affect any right
that any Loan Party may otherwise have to bring any action or proceeding
relating to this Amended and Restated Pledge Agreement in the courts of any
jurisdiction.
(c) Each of IWC Inc. and IWC China hereby 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 Amended
and Restated Pledge Agreement in any New York State or federal court. Each
of IWC Inc. and IWC China 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) Each of IWC Inc. and IWC China 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 Amended and Restated
Pledge Agreement, any document delivered under this Amended and Restated
Pledge Agreement, any Advance or any First Supplemental Advance or the
actions of the Lender in the negotiations, administration, performance or
enforcement hereof.
IN WITNESS WHEREOF, each of IWC Inc. and IWC China has caused this
Amended and Restated 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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Title:
IWC CHINA LIMITED
By
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Title:
