Security and Control Agreement among IWO Holdings, Inc., Firstar Bank, N.A. (Trustee), and Firstar Bank, N.A. (Securities Intermediary)

Summary

This agreement is between IWO Holdings, Inc. (the Pledgor), Firstar Bank, N.A. as Trustee for noteholders, and Firstar Bank, N.A. as Securities Intermediary. It establishes a security interest in a securities account holding proceeds from the sale of senior notes, which are used to purchase government securities for the benefit of noteholders. The Trustee has exclusive control over the account and its assets to secure IWO Holdings' obligations under the notes and related agreements. The agreement outlines how the account is managed and the conditions for disbursement of assets.

EX-4.7 7 dex47.txt SECURITY AND CONTROL AGREEMENT Exhibit 4.7 ----------- SECURITY AND CONTROL AGREEMENT IWO HOLDINGS, INC., a Delaware corporation (the "Pledgor"), FIRSTAR ------- BANK, N.A., as trustee (in that capacity, the "Trustee") for the registered ------- holders from time to time (the "Holders") of the Notes (as defined herein) ------- 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 -------- 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 --------- 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 101 East 5th Street, St. Paul, MN 55101, 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 ------------------ ---------------- Account" to which the Indenture and the Offering Circular for the Notes make - ------- reference. D. The Securities Intermediary has agreed to use the Interest Reserve to purchase Government Notes (the "Pledged Securities") and to place the ------------------ 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 -------------------------- 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 ------------------------ 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 ---------------------------------------------- Securities Account. - ------------------ (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. 2 (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 Donaldson, Lufkin & Jenrette 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 ---------------------------------------------------- Set-Off, etc. - ------------- 3 (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 -------------- 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. ------------- 4 (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 ---------------------------------------- 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 5 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. 6 (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 319 Great Oaks Boulevard, Albany, NY ###-###-####. 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 ------------------- 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 7 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 --------------------------------------------------------- Covenants. The Securities Intermediary represents and warrants that it is, as of - --------- 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. 8 SECTION 10. Power of Attorney. Upon the occurrence and continuation ----------------- 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 ---------------------------------------- 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 --------- 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 9 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 ------------------------------ 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 10 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 -------- 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 -------------------------- 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; 11 (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. ------------------------ Section 16.1 Notices. Any notice or communication given hereunder ------- 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. 319 Great Oaks Boulevard Albany New York ###-###-#### Attention: Chief Executive Officer Telecopier: (518) 862-6033 with a copy to: -------------- Gibson Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 Attention: Jeorg H. Esdorn, Esq. Telecopier: (212) 351-4035 12 if to the Trustee: ----------------- Firstar Bank, N.A. 101 East 5th Street St. Paul, MN 55101 Attention: Corporate Trust Department Telecopier: (651) 229-6415 if to the Securities Intermediary: --------------------------------- Firstar Bank, N.A. 101 East 5th Street St. Paul, MN 55101 Attention: Corporate Trust Department Telecopier: (651) 229-6415 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/ Steven M. Nielsen --------------------- Name: Steven M. Nielsen Title: Chief Executive Officer Trustee: FIRSTAR BANK, N.A., as Trustee By: /s/ Frank P. Leslie III ----------------------- Name: Frank P. Leslie III Title: Vice President Securities Intermediary: FIRSTAR BANK, N.A., as Securities Intermediary By: /s/ Frank P. Leslie III ----------------------- Name: Frank P. Leslie 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 101 East 5th Street St. Paul, MN 55101 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