intercreditor and collateral agency agreement



 



Exhibit 4.4


Microcell Solutions Inc.



as Borrower;



Microcell Telecommunications Inc.



as Parent;



JPMorgan Chase Bank, Toronto Branch



as Collateral Agent and Administrative Agent;



Each of the persons listed on the



execution pages hereto under the “Tranche A Lenders” heading


as Tranche A Lenders;



Each of the persons listed on the



execution pages hereto under the “Tranche B Lenders” heading


as Tranche B Lenders;



Each of the persons listed on the



execution pages hereto under the “Tranche C Lenders” heading


as Tranche C Lenders



Computershare Trust Company of Canada



as Trustee for the holders of First Units



Computershare Trust Company of Canada



as Trustee for the holders of Second Units



INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT



Dated as of May 1, 2003



 






 





INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT



          THIS INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, dated as of May 1,
2003, is made among MICROCELL SOLUTIONS INC., as borrower (the “Borrower”),
MICROCELL TELECOMMUNICATIONS INC., as guarantor (the “Parent”), EACH OF THE
PERSONS LISTED ON THE EXECUTION PAGES HERETO under the “Tranche A Lenders”
heading (such Persons, together with any other Person which becomes a lender
under the Tranche A Exit Facility Agreement, being the “Tranche A Lenders”),
EACH OF THE PERSONS LISTED ON THE EXECUTION PAGES HERETO under the “Tranche B
Lenders” heading (such Persons, together with any other Person which becomes a
lender under the Tranche B Credit Agreement, being the “Tranche B Lenders”),
EACH OF THE PERSONS LISTED ON THE EXECUTION PAGES HERETO under the “Tranche C
Lenders” heading (such Persons, together with any other Person which becomes a
lender under the Tranche C Credit Agreement, being the “Tranche C Lenders”; the
Tranche A Lenders, the Tranche B Lenders and the Tranche C Lenders being
referred to collectively as the “Creditors”), JPMORGAN CHASE BANK, TORONTO
BRANCH, as administrative agent (in those capacities, the Administrative
Agent”) under the Tranche A Exit Facility Agreement, the Tranche B Credit
Agreement and the Tranche C Credit Agreement (each as defined below), JPMORGAN
CHASE BANK, TORONTO BRANCH, as collateral agent for each of the Tranche A
Lenders, the Tranche B Lenders and the Tranche C Lenders (in such capacity, the
“Collateral Agent”) and as fondé de pouvoir pursuant to the terms of the
Tranche A Exit Facility Agreement, the Tranche B Credit Agreement and the
Tranche C Credit Agreement (in such capacity, the “Fondé de Pouvoir”),
COMPUTERSHARE TRUST COMPANY OF CANADA, as Trustee for the holders of the First
Units, and COMPUTERSHARE TRUST COMPANY OF CANADA, as Trustee for the holders of
the Second Units.



INTRODUCTORY STATEMENTS:



A.     Pursuant to the Plan of Arrangement and the Sanction Order (each as defined
below), through a series of transactions, Microcell Connexions Inc. and
Microcell Solutions Inc. (the “Pre-Filing Borrowers”) and Microcell
Telecommunications Inc. (the “Pre-Filing Parent”) have completed a
reorganization, with the result that certain obligations of the Pre-Filing
Borrowers and the Pre-Filing Parent under various credit facilities have become
the obligations of the Borrower and the Parent, respectively;


B.     The Borrower, the Parent, the Tranche A Lenders, the Administrative Agent
and the Collateral Agent have entered into a credit agreement (as amended,
restated, supplemented or otherwise modified from time to time, the “Tranche A
Exit Facility Agreement”), dated as of the date hereof, pursuant to which (i)
the Tranche A Lenders have established secured revolving credit facilities in
favour of the Borrower in the principal amount of Cdn.$25,000,000, and (ii) the
Borrower may incur, through one or more transactions, Permitted Additional Exit
Facility Debt (as defined below), to be effected through an increase in the
aggregate commitments of the Tranche A Lenders thereunder;


C.     The Borrower, the Parent, the Tranche B Lenders, the Administrative Agent
and the Collateral Agent have entered into a credit agreement (as amended,
restated, supplemented or otherwise modified from time to time, the “Tranche B
Credit Agreement”), dated as of the date hereof, pursuant to which
Cdn.$300,000,000 principal amount of the obligations of the Pre-


 






 


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Filing Borrowers and the Pre-Filing Parent to the Tranche B Lenders have been
restructured as secured non-revolving loans to the Borrower on the terms and
conditions set forth therein;


D.     The Borrower, the Parent, the Tranche C Lenders, the Administrative Agent
and the Collateral Agent have entered into a credit agreement (as amended,
restated, supplemented or otherwise modified from time to time, the “Tranche C
Credit Agreement”), dated as of the date hereof, pursuant to which
Cdn.$50,000,000 principal amount of the obligations of the Pre-Filing Borrowers
and the Pre-Filing Parent to the Tranche C Lenders have been restructured as
secured non-revolving loans to the Borrower on the terms and conditions set
forth therein;


E.     The Borrower, the Parent, the Pre-Filing Parent and their subsidiaries
(other than Unrestricted Subsidiaries) have provided, or have agreed to
provide, security over their assets to secure the obligations of the Borrower
and the Parent to the Creditors, the Administrative Agent and the Collateral
Agent under the Tranche A Exit Facility Agreement, the Tranche B Credit
Agreement, and the Tranche C Credit Agreement (collectively, the “New Debt
Instruments”);


F.     The purpose of this Agreement is to set forth the relative priorities of the
various creditors which are parties hereto and the terms and conditions under
which the Collateral Agent will be appointed as collateral agent on behalf of
each of the Tranche A Lenders, the Tranche B Lenders and the Tranche C Lenders,
and will hereafter hold the security provided by the Borrower, the Parent or
any of their subsidiaries and, if necessary, exercise rights and remedies in
respect of such security on behalf of, and for the benefit of, the Creditors;


          Now Therefore this Agreement Witnesses that, in consideration of the
mutual covenants herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties to
this Agreement, the parties hereto agree with each other as follows:



ARTICLE 1



INTERPRETATION


1.1     Definitions. In this Agreement, the following defined terms will have the
following meanings:


          “Affiliate” means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with, such Person.



          “Agents” means the Administrative Agent and the Collateral Agent.



          “Asset Disposition” means, with respect to any Credit Party, the sale,
lease, license, transfer, assignment or other disposition of, or the
expropriation, condemnation, destruction or other loss of, all or any portion
of its business, assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, whether in one transaction or a series of transactions
(including a sale/leaseback transaction), other than (a) inventory sold in the
ordinary course of business upon customary credit terms, (b) sales of scrap or
obsolete material or equipment which are not material in the aggregate, (c)
sales or other dispositions of assets which are not in the ordinary course of
business or leases of real property or personal property (under which a Credit
Party is lessor), in any such case, which have a Fair Market Value less than



 






 





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Cdn.$2,000,000 for any transaction and less than Cdn.$2,000,000 for all
such transactions in any Fiscal Year and which are no longer used or useful in
the business, (d) licenses granted to third parties in the ordinary course of
business, (e) property sold to any other Credit Party, and (f) any other
disposition consented to by the “Required Lenders” under the Tranche B Credit
Agreement. In the case of an expropriation, condemnation, destruction or other
loss of any property, any insurance proceeds or other indemnity received as a
result of such event may be used by the Credit Party within the 90-day period
following the receipt of such insurance proceeds or other indemnity to replace
the property so disposed of and such sale or disposition will not constitute an
Asset Disposition.


          “Business Day” means any day, other than a Saturday or Sunday, on which
banks are generally open for business in Toronto, Ontario, Montreal, Quebec,
and New York City, U.S.A.



          “Capital Expenditures” means, for any period, all expenditures (whether
paid in cash or accrued as a liability, including the portion of Capital Lease
Obligations originally incurred during such period that are capitalized) during
such period that, in conformity with GAAP, are included in “capital
expenditures”, “additions to property, plant or equipment” or comparable items,
but excluding expenditures for the restoration, repair or replacement of any
fixed or capital asset that was destroyed or damaged, in whole or in part, in
an amount not exceeding any insurance proceeds received in connection with such
destruction or damage.



          “Capital Lease Obligations” of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.



          “Collateral” means the property which is charged by or hypothecated under
the Security Documents, and includes all property, rights and assets, present
and future of the Borrower, the Parent and those subsidiaries of the Borrower
or the Parent which have provided or may hereafter provide security to the
Collateral Agent (or to any trustee or “fondé de pouvoir” for or on behalf of
the Collateral Agent and/or the Creditors) to secure the Obligations (or any of
them) to the Creditors.



          “Control” means, in respect of a particular Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.



          “Credit Party” means the Parent, the Borrower, each of the Subsidiaries,
and any other Person which is a party to a Financing Document (other than the
Administrative Agent, the Collateral Agent, the Creditors, any other agent, or
trustee or “fondé de pouvoir” of or for the Creditors under any of the New Debt
Instruments, and their respective successors and assigns) but, for greater
certainty, does not include any Unrestricted Subsidiary.



          “Default” means an “Event of Default” under any of the New Debt
Instruments.



 






 





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          “ECF EBITDA” means operating income (loss) plus, to the extent deducted in
calculating operating income (loss), non-cash restructuring charges, impairment
of intangible assets, depreciation and amortization, all as calculated in
accordance with GAAP.



          “Effective Date” means the “Effective Date” under, and as defined in, the
Plan of Arrangement.



          “Equity Securities” means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting and non-voting) of, such Person’s capital, whether
outstanding on the date hereof or issued after the date hereof, including any
interest in a partnership, limited partnership or other similar Person and any
beneficial interest in a trust, and any and all rights, warrants, options or
other rights exchangeable for or convertible into any of the foregoing.



          “Excess Cash Flow” means, for the Credit Parties for any Fiscal Year,
consolidated ECF EBITDA of the Credit Parties for such period minus the sum
(without duplication) of (i) scheduled principal payments made by the Credit
Parties during such Fiscal Year under the Tranche B Credit Agreement, and
scheduled principal payments made by the Credit Parties during such Fiscal Year
under the Tranche C Credit Agreement, to the extent such payments are permitted
by this Agreement, (ii) principal payments made by the Credit Parties during
such Fiscal Year under the Tranche A Exit Facility Agreement (including under
any Permitted Additional Exit Facility Debt), to the extent that such payments
result in a corresponding decrease in the commitment amounts under the Tranche
A Exit Facility Agreement, (iii) the principal portion of scheduled payments
made by the Credit Parties during such Fiscal Year on Capital Lease Obligations
to the extent such Capital Lease Obligations and payments are permitted by the
Tranche A Exit Facility Agreement and the Tranche B Credit Agreement, (iv) cash
interest paid by the Credit Parties in respect of such Fiscal Year, (v) cash
taxes applicable to such Fiscal Year paid or payable by the Credit Parties
prior to the date of determination, and (vi) Capital Expenditures made by the
Credit Parties during such Fiscal Year to the extent permitted by the Tranche A
Exit Facility Agreement and the Tranche B Credit Agreement.



          “Fair Market Value” means (a) with respect to any asset or group of assets
(other than a marketable security) at any date, the value of the consideration
obtainable in a sale of such asset at such date assuming a sale by a willing
seller to a willing purchaser dealing at arm’s length and arranged in an
orderly manner over a reasonable period of time having regard to the nature and
characteristics of such asset, or, if such asset shall have been the subject of
a relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal, and (b) with respect to any
marketable security at any date, the closing sale price of such marketable
security on the Business Day next preceding such date, or, if there is no such
closing sale price of such marketable security, the final price for the
purchase of such marketable security at face value quoted on such business day
by a financial institution of recognized standing selected by the Collateral
Agent which regularly deals in securities of such type.



          “Financing Documents” means the Tranche A Exit Facility Agreement, the
Tranche B Credit Agreement, the Tranche C Credit Agreement and the Security
Documents.




 






 





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          “First Notes” means the First Notes forming part of the First Units.



          “First Preferred Shareholder/Unitholder” means a holder of First Preferred
Shares or First Units.



          “First Preferred Shareholder/Unitholder Obligations” means all debts,
obligations and liabilities, present or future, direct or indirect, absolute or
contingent, matured or unmatured, at any time owing by the Parent to the
holders of First Preferred Shares or First Units or remaining unpaid by the
Parent to the holders of First Preferred Shares or First Units.



          “First Preferred Shares” means the First Preferred Shares in the capital
of the Parent.



          “First Units” means the First Units which may be issued upon a redemption
of the First Preferred Shares.



          “First Units Trustee” means Computershare Trust Company of Canada as
trustee for the holders of the First Units issued pursuant to that First Unit
Indenture dated May 1, 2003 between Computershare Trust Company of Canada and
the Parent, and any successor thereof.



          “Fiscal Year” means any fiscal year of the Borrower.



          “GAAP” means generally accepted accounting principles in Canada as in
effect from time to time.



          “Lien” means, (a) with respect to any asset, any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge, security interest, royalty
interest, adverse claim, defect of title or right of set off in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease, title retention agreement or consignment agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to any asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities, (d) any netting arrangement, defeasance arrangement or reciprocal
fee arrangement, and (e) any other arrangement having the effect of providing
security.



          “Mandatory Prepayments” means payments to be made to Creditors pursuant to
Section 2.2 with proceeds from Excess Cash Flow, Asset Dispositions or the sale
or issuance of Equity Securities.



          “Net Proceeds” means, (a) with respect to any Asset Disposition, the gross
amount received by the Credit Parties from such Asset Disposition, including
proceeds of any insurance policies received by the Credit Parties in connection
with such Asset Disposition and amounts received by the Credit Parties pursuant
to any expropriation proceeding or condemnation proceeding in connection with
such Asset Disposition, minus the sum of (i) the amount, if any, of all Taxes
paid or payable by the Credit Parties directly resulting from such Asset
Disposition (including the amount, if any, estimated by the relevant Credit
Party in good faith at the time of such Asset Disposition for Taxes payable by
the Credit Parties on or measured by net income or gain resulting from such
Asset Disposition, taking into account any Tax losses or credits available or
to be available to the Credit Parties at the time such Taxes are



 






 





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payable that are not used to offset other income or gains), and (ii) the
reasonable out-of-pocket costs and expenses incurred by the Credit Parties in
connection with such Asset Disposition (including reasonable brokerage
commissions and customary fees and expenses of counsel, investment bankers and
other advisors paid to a Person other than an Affiliate of the Credit Parties,
but excluding any fees or expenses paid to an Affiliate of the Credit Parties),
and (b) with respect to any issuance of Equity Securities, the gross amount
received by the Credit Parties from such issuance of Equity Securities, minus
the reasonable out-of-pocket costs and expenses incurred by the Credit Parties
in connection with such issuance of Equity Securities (including reasonable
legal, underwriting and brokerage fees and expenses paid to a Person other than
an Affiliate of the Credit Parties, but excluding any fees or expenses paid to
an Affiliate of the Credit Parties). For greater certainty, the Net Proceeds
in respect of the issuance of Equity Securities by a Credit Party to another
Credit Party shall be nil.


          “New Debt Instruments” is defined in Introductory Statement E.



          “Obligations” means, collectively, the Tranche A Obligations, the Tranche
B Obligations, the Tranche C Obligations, the First Preferred
Shareholder/Unitholder Obligations and the Second Preferred
Shareholder/Unitholder Obligations.



          “Permitted Additional Exit Facility Debt” means secured indebtedness, in
an aggregate principal amount not exceeding an amount equal to Cdn.$75,000,000
less the principal amount under the Tranche A Exit Facility Agreement on the
Effective Date, incurred by the Borrower at any time after the Effective Date,
by way of an increase in the “Commitments” under the Tranche A Exit Facility
Agreement.



          “Person” means any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).



          “Plan of Arrangement” means the plan of reorganization and of compromise
and arrangement by, inter alia, the Pre-Filing Borrowers and the Pre-Filing
Parent pursuant to the Companies Creditors’ Arrangement Act (Canada) and the
Canada Business Corporations Act approved pursuant to the Sanction Order, as
such plan of reorganization and of compromise and arrangement may be modified,
supplemented or amended in accordance with its terms.



          “Pro Rata Share” means (a) in the case of a Tranche A Lender, the
proportion which the Tranche A Obligations of such Tranche A Lender bears to
the aggregate Tranche A Obligations, (b) in the case of a Tranche B Lender, the
proportion which the Tranche B Obligations of such Tranche B Lender bears to
the aggregate Tranche B Obligations, (c) in the case of a Tranche C Lender, the
proportion which the Tranche C Obligations of such Tranche C Lender bears to
the aggregate Tranche C Obligations, (d) in the case of a First Preferred
Shareholder/Unitholder, the proportion which the First Preferred Shares or
First Units of such First Preferred Shareholder/Unitholder bears to the
aggregate number of First Preferred Shares or First Units, (e) in the case of a
Second Preferred Shareholder/Unitholder, the proportion which the Second
Preferred Shares or Second Units of such Second Preferred
Shareholder/Unitholder bears to the aggregate number of Second Preferred Shares
or Second Units, and (f) in the case of any Creditor, the proportion which the
aggregate Obligations of such Creditor bears to the aggregate Obligations. For
the purposes of this definition of “Pro Rata Share” and other related



 






 





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definitions herein, the amount of the Obligations of any Tranche A Swap
Counterparty will be, as at the date of determination, (a) in the case of all
Swap Agreements which have not been terminated, the total amount which the
Borrower would be obligated to pay to the applicable Tranche A Swap
Counterparty under such Swap Agreements with the Borrower in the event of the
early termination by such Tranche A Swap Counterparty as of such date of such
Swap Agreements as a result of the occurrence of a default or event of default
(however specified or designated thereunder), and (b) in the case of all Swap
Agreements which have been terminated, the total amount which the Borrower is
obligated to pay to the applicable Tranche A Swap Counterparty under such Swap
Agreements with the Borrower.


          “Proceeds of Realization” means all cash and non-cash proceeds derived
from any sale, disposition or other realization of the Collateral upon the
enforcement of any of the Security Documents and any payment or other
consideration received by any Creditor on account of any of the Obligations
after the commencement of enforcement of any of the Security Documents.



          “Receiver” means a receiver, receiver and manager, interim receiver or
other person having similar powers or authority appointed under any of the
Security Documents or by a court in respect of any of the Collateral.



          “Required Creditors” means (a) at any time when the Tranche A Exit
Facility Agreement remains in effect, the “Required Lenders” under the Tranche
A Exit Facility Agreement, (b) at any time when the Tranche A Exit Facility
Agreement no longer remains in effect but amounts remain outstanding under the
Tranche B Credit Agreement, the “Required Lenders” under the Tranche B Credit
Agreement, and (c) at any time when the Tranche A Exit Facility Agreement no
longer remains in effect and no amounts remain outstanding under the Tranche B
Credit Agreement, the “Required Lenders” under the Tranche C Credit Agreement.



          “Sanction Order” means the final order of the Quebec Superior Court, dated
March 18, 2003, sanctioning the Plan of Arrangement, as such order may be
amended, modified or supplemented from time to time.



          “Second Notes” means the Second Notes forming part of the Second Units.



          “Second Preferred Shareholder/Unitholder” means a holder of Second
Preferred Shares or Second Units.



          “Second Preferred Shareholder/Unitholder Obligations” means all debts,
obligations and liabilities, present or future, direct or indirect, absolute or
contingent, matured or unmatured, at any time owing by the Parent to the
holders of Second Preferred Shares or Second Units or remaining unpaid by the
Parent to the holders of Second Preferred Shares or Second Units.



          “Second Preferred Shares” means the Second Preferred Shares in the capital
of the Parent.



          “Second Units” means the Second Units which may be issued upon a
redemption of the Second Preferred Shares.



 






 





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          “Second Units Trustee” means Computershare Trust Company of Canada, as
trustee for the holders of the Second Units issued pursuant to that Second Unit
Indenture dated May 1, 2003 between Computershare Trust Company of Canada and
the Parent, and any successor thereof.



          “Security Documents” means the Tranche A Security Documents, the Tranche B
Security Documents and the Tranche C Security Documents.



          “Senior Creditors” means, (a) with respect to the Tranche B Lenders, the
Tranche A Lenders, and (b) with respect to the Tranche C Lenders, the Tranche A
Lenders and the Tranche B Lenders.



          “Standstill Event” means (a) at any time when the Tranche A Exit Facility
Agreement remains in effect, the provision by the Administrative Agent under
the Tranche A Exit Facility Agreement to the Borrower, the Administrative Agent
under the Tranche B Credit Agreement, and the Administrative Agent under the
Tranche C Credit Agreement, of a notice that a Default has occurred and is
continuing under the Tranche A Exit Facility Agreement, or (b) at any time when
the Tranche A Exit Facility Agreement no longer remains in effect but amounts
remain outstanding under the Tranche B Credit Agreement, the provision by the
Administrative Agent under the Tranche B Credit Agreement to the Borrower and
the Administrative Agent under the Tranche C Credit Agreement, of a notice that
a Default has occurred and is continuing under the Tranche B Credit Agreement.



          “Subordinate Creditors” means (a) with respect to the Tranche A Lenders,
the Tranche B Lenders and the Tranche C Lenders, and (b) with respect to the
Tranche B Lenders, the Tranche C Lenders.



          “Subordinate Obligations” means Obligations in favour of Subordinate
Creditors.



          “Subsidiary” has the meaning given in the Tranche B Credit Agreement.



          “Swap Agreement” has the meaning given in the Tranche A Exit Facility
Agreement.



          “Taxes” means all taxes, charges, fees, levies, imposts and other
assessments, including all income, sales, use, goods and services, value added,
capital, capital gains, alternative, net worth, transfer, profits, withholding,
payroll, employer health, excise, real property and personal property taxes,
and any other taxes, customs duties, fees, assessments, or similar charges in
the nature of a tax, including Canada Pension Plan and provincial pension plan
contributions, unemployment insurance payments and workers’ compensation
premiums, together with any instalments with respect thereto, and any interest,
fines and penalties with respect thereto, imposed by any governmental authority
(including federal, state, provincial, municipal and foreign governmental
authorities), and whether disputed or not.



          “Tranche A Obligations” means all debts, obligations and liabilities,
present or future, direct or indirect, absolute or contingent, matured or
unmatured, at any time owing by the Borrower to (a) the Tranche A Lenders or
remaining unpaid by the Borrower pursuant to the Tranche A Exit Facility
Agreement, including pursuant to any Permitted Additional Exit Facility



 






 





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Debt, and (b) any Tranche A Swap Counterparty pursuant to any Swap
Agreement with such Tranche A Swap Counterparty.



          “Tranche A Security Documents” means (a) the documents and instruments
pursuant to which any of the Credit Parties which have provided security to the
Collateral Agent (or to any fondé de pouvoir (person holding the power of
attorney) for or on behalf of the Collateral Agent and/or the Tranche A Lenders
and any Tranche A Swap Counterparty) has granted security, or may in the future
grant security, over all or any portion of its assets to secure the Tranche A
Obligations, and (b) any other document or instrument executed by any other
Person which is intended to provide further security to the Tranche A Lenders
and any Tranche A Swap Counterparty (or the Collateral Agent or any fondé de
pouvoir (person holding the power of attorney) on their behalf) for the Tranche
A Obligations.



          “Tranche A Swap Counterparty” means any Tranche A Lender or any Affiliate
of a Tranche A Lender, in either case to the extent that such Person has
entered into a Swap Agreement with the Borrower in accordance with the Tranche
A Exit Facility Agreement.



          “Tranche B Obligations” means all debts, obligations and liabilities,
present or future, direct or indirect, absolute or contingent, matured or
unmatured, at any time owing by the Borrower to the Tranche B Lenders or
remaining unpaid by the Borrower to the Tranche B Lenders pursuant to the
Tranche B Credit Agreement.



          “Tranche B Security Documents” means (a) the documents and instruments
pursuant to which any of the Credit Parties which have provided security to the
Collateral Agent (or to any fondé de pouvoir (person holding the power of
attorney) for or on behalf of the Collateral Agent and/or the Tranche B
Lenders) has granted security, or may in the future grant security, over all or
any portion of its assets to secure the Tranche B Obligations, and (b) any
other document or instrument executed by any other Person which is intended to
provide further security to the Tranche B Lenders (or the Collateral Agent or
any fondé de pouvoir (person holding the power of attorney) on their behalf)
for the Tranche B Obligations.



          “Tranche C Obligations” means all debts, obligations and liabilities,
present or future, direct or indirect, absolute or contingent, matured or
unmatured, at any time owing by the Borrower to the Tranche C Lenders or
remaining unpaid by the Borrower to the Tranche C Lenders pursuant to the
Tranche C Credit Agreement.



          “Tranche C Security Documents” means (a) the documents and instruments
pursuant to which any of the Credit Parties which have provided security to the
Collateral Agent (or to any fondé de pouvoir (person holding the power of
attorney) for or on behalf of the Collateral Agent and/or the Tranche C
Lenders) has granted security, or may in the future grant security, over all or
any portion of its assets to secure the Tranche C Obligations, and (b) any
other document or instrument executed by any other Person which is intended to
provide further security to the Tranche C Lenders (or the Collateral Agent or
any fondé de pouvoir (person holding the power of attorney) on their behalf)
for the Tranche C Obligations.



          “Unrestricted Subsidiary” means Inukshuk Internet Inc. and Telecom
Investments Inc. (but in the case of Telecom Investments Inc., only for so long
as its sole activity is serving as general partner of GSM Capital Partners),
and their respective successors and permitted assigns.




 






 





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          “Warrants” means the 2005 and 2008 warrants issued pursuant to those
certain warrant indentures between the Parent and Computershare Trust Company
of Canada, as trustee, each dated May 1, 2003, entitling the holders thereof to
subscribe for Equity Securities of the Parent.



1.2     Other Usages. References to “this Agreement”, “the Agreement”, “hereof”,
“herein”, “hereto” and like references refer to this Agreement and not to any
particular Article, Section or other subdivision of this Agreement. Any
references to “this Agreement”, “the Agreement”, “hereof”, “herein”, “hereto”
and like references refer to this Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof. In
this Agreement, the word “includes” or “including” means “includes without
limitation” or “including without limitation”.


1.3     Plural and Singular. Where the context so requires, words importing the
singular number will include the plural and vice versa.


1.4     Headings. The division of this Agreement into Articles, Sections and the
insertion of headings in this Agreement are for convenience of reference only
and will not affect the construction or interpretation of this Agreement.


1.5     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 in the Province of Ontario.


1.6     Time of the Essence. Time is of the essence of this Agreement.


1.7     Paramountcy. If there is a conflict or inconsistency between the
provisions of this Agreement and the provisions of any other agreement which is
referred to herein or delivered pursuant hereto, the provisions of this
Agreement will prevail to the extent of the conflict or inconsistency, provided
that nothing in this Agreement is intended to or will impair, as between the
Borrower and the Creditors, (a) the obligations of the Borrower to pay or
perform any of the Obligations when due, or (b) the validity or enforceability
of the security constituted by any of the Security Documents.


1.8     No Rights Conferred on Borrower. Nothing in this Agreement will be
construed as conferring any rights upon the Borrower or any third party. The
terms and conditions hereof are and will be for the sole and exclusive benefit
of the Creditors.


1.9     Currency. In determining the Pro Rata Shares of the Creditors under this
Agreement, all Obligations shall be expressed in Canadian Dollars. If any
Obligation is denominated in U.S. Dollars, then for the purposes of determining
Pro Rata Shares, such Obligation shall be converted to Canadian Dollars at an
exchange rate equal to the Bank of Canada noon spot rate on the date of
determination.


ARTICLE 2



SUBORDINATIONS; PRO RATA SHARING; ACKNOWLEDGEMENTS


2.1     Subordinations; Application of Proceeds of Realization. The Tranche B
Lenders hereby agree that, except as otherwise expressly provided herein, the
payment of the


 






 


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Tranche B Obligations is hereby subordinated, to the extent and in the manner
set forth herein, to the prior indefeasible payment in cash of all Tranche A
Obligations, and the Tranche A Obligations will have priority over the Tranche
B Obligations in all respects and at all times. The Tranche B Lenders hereby
also agree that the Liens arising under the Tranche B Security Documents are
hereby subordinated, to the extent and in the manner set forth herein, to the
Liens arising under the Tranche A Security Documents, and the Tranche A
Security Documents will have priority over the Tranche B Security Documents in
all respects and at all times. The Tranche C Lenders hereby agree that, except
as otherwise expressly provided herein, the payment of the Tranche C
Obligations is hereby subordinated, to the extent and in the manner set forth
herein, to the prior indefeasible payment in cash of all Tranche A Obligations
and Tranche B Obligations, and the Tranche A Obligations and Tranche B
Obligations will have priority over the Tranche C Obligations in all respects
and at all times. The Tranche C Lenders hereby also agree that, except as
otherwise expressly provided herein, the Liens arising under the Tranche C
Security Documents are hereby subordinated, to the extent and in the manner set
forth herein, to the Liens arising under the Tranche A Security Documents and
the Tranche B Security Documents, and the Tranche A Security Documents and the
Tranche B Security Documents will have priority over the Tranche C Security
Documents in all respects and at all times. The First Units Trustee hereby
agrees, for and on behalf of the holders of any First Units, that all payments
in respect of the First Units, if and when issued, are hereby subordinated to
the prior indefeasible payment in cash of all of the Tranche A Obligations, the
Tranche B Obligations and the Tranche C Obligations, and the Tranche A
Obligations, the Tranche B Obligations and the Tranche C Obligations will have
priority over the First Units in all respects and at all times. The Second
Units Trustee hereby agrees, for and on behalf of the holders of any Second
Units, that all payments in respect of the Second Units, if and when issued,
are hereby subordinated to the prior indefeasible payment in cash of all of the
Tranche A Obligations, the Tranche B Obligations, the Tranche C Obligations and
the First Units, and the Tranche A Obligations, the Tranche B Obligations, the
Tranche C Obligations and the First Units will have priority over the Second
Units in all respects and at all times. The First Units and the Second Units,
if and when issued, will be unsecured obligations of the Parent, and will not
be guaranteed by any other Credit Party. Any Proceeds of Realization will be
applied to the Obligations and distributed in the following order and priority:



	 	(a)	 	first, to the payment of all costs, charges, expenses and
liabilities incurred in connection with any enforcement of any of
the Security Documents, including legal fees and all costs, charges,
expenses and liabilities provided for in any of the Security
Documents, and including all costs, charges and expenses of the
Collateral Agent, any trustee and/or any Receiver;
	 
	 	(b)	 	second, to the Tranche A Lenders and the Tranche A Swap
Counterparties, if any, on account of the Tranche A Obligations, in
accordance with their respective Pro Rata Shares;
	 
	 	(c)	 	third, to the Tranche B Lenders, on account of the Tranche B
Obligations, in accordance with their respective Pro Rata Shares;
	 
	 	(d)	 	fourth, to the Tranche C Lenders, on account of the Tranche C
Obligations, in accordance with their respective Pro Rata Shares;
and



 






 






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	 	(e)	 	fifth, to the Credit Parties or as otherwise required by
applicable law.




	 	 	Each Creditor acknowledges that the foregoing method of
application of Proceeds of Realization may be subject to the
claims, if any, of prior secured creditors of the Debtor; however,
this acknowledgement is not intended to, and shall not, constitute
a subordination by any Creditor in favour of any other creditor of
the Debtor. For the purposes of this Agreement, Obligations will
not be considered to have been paid in full unless the relevant
Creditor has received indefeasible payment of the full amount of
the relevant Obligations owing to such Creditor.



2.2     Mandatory Prepayments.



	 	(a)	 	If, at the end of any Fiscal Year, the Parent has a
consolidated cash balance (which shall include all cash, cash
equivalents and short-term investments) of at least Cdn.$45,000,000
(prior to the Parent’s 25% share of any Excess Cash Flow), and if
the Credit Parties have generated Excess Cash Flow during such
Fiscal Year, then the Borrower shall pay to the Collateral Agent,
for the benefit of the Creditors and other Persons entitled to
payments pursuant to the terms hereof, on or before March 31 of the
immediately following Fiscal Year, an amount equal to 75% of the
Excess Cash Flow generated in such Fiscal Year. Any such amount
shall be applied as contemplated by Section 2.2(d). The Parent
shall manage its consolidated cash balance in the ordinary course
and in a manner consistent with its cash management practices in
prior periods, and shall not take any action or omit to take any
action which is intended to reduce the consolidated cash balance of
the Parent for the purpose of this Section 2.2.
	 
	 	(b)	 	In the event of an Asset Disposition, the Borrower shall pay
to the Collateral Agent, for the benefit of the Creditors, within
five Business Days following the receipt of the proceeds of such
Asset Disposition, an amount equal to any Net Proceeds in excess of
Cdn.$2,000,000 in the aggregate in any Fiscal Year received from
such Asset Disposition and any other Asset Disposition which
generated Net Proceeds during such Fiscal Year. Any such amount
shall be applied as contemplated by Section 2.2 (d); provided,
however, that in the event of any payment which would otherwise be
required to be made to the Tranche B Lenders or the Tranche C
Lenders under any of Sections 2.2(d) (i), (iv), (ix) or (xi) (a
“Triggering Event”), the Borrower shall, instead of paying the
Collateral Agent, offer to prepay the Tranche B Loans or the Tranche
C Loans, as the case may be, by an amount which would have been
otherwise allocated under Section 2.2(d) to prepay the Tranche B
Loans or the Tranche C Loans, as the case may be. Any such offer of
prepayment shall be made by the Borrower in writing and shall be
delivered to the Administrative Agent for the Tranche B Lenders or
the Tranche C Lenders, as applicable, whereupon each such
Administrative Agent shall forward a copy of such notice to the
Tranche B Lenders or the Tranche C Lenders, as applicable. Each
Tranche B Lender or Tranche C Lender, as applicable, shall be
permitted to accept or reject any such offer of prepayment, and
shall have 5 Business Days to notify the applicable Administrative
Agent of its decision to accept or reject any such offer of
prepayment as a result of such



 






 






- 13 -




	 	 	 	Triggering Event. Any Tranche B Lender or Tranche C Lender which
fails to notify the applicable Administrative Agent, within such 5
Business Days, of its decision to accept or reject any such offer
of prepayment as a result of such Triggering Event shall be deemed
to have accepted such offer of prepayment. The applicable
Administrative Agent shall notify the Collateral Agent of the
payment entitlements, if any, resulting from the foregoing.
	 
	 	(c)	 	The Borrower shall ensure that, within five Business Days
after the receipt of the proceeds of any sale or issuance of Equity
Securities by a Credit Party, the relevant Credit Party shall pay to
the Collateral Agent, for the account of the Creditors, an amount
equal to 75% of any Net Proceeds from the issuance of such Equity
Securities, including any proceeds from the exercise of any of the
Warrants; provided that, for greater certainty, this Section 2.2(c)
shall not apply to any issuance of Equity Securities by a Credit
Party to another Credit Party. Any such amount shall be used to make
the payments contemplated by Section 2.2 (d).
	 
	 	(d)	 	If, at the time of any Mandatory Prepayment, First Preferred
Shares and Second Preferred Shares are issued and outstanding, then
Mandatory Prepayments made pursuant to this Section 2.2 shall be
applied sequentially, in the following priority (but subject always
to the proviso in Section 2.2(b), and subject to the maintenance of
a minimum consolidated cash balance (which shall include all cash,
cash equivalents and short-term investments) of at least
Cdn.$45,000,000, prior to the Parent’s 25% share of any Excess Cash
Flow):



	 	 	 	 

	 	(i)	 	first, subject to Section 2.2(f), to the
permanent rateable prepayment of the principal amounts
outstanding under the Tranche B Credit Agreement, up to a
maximum aggregate amount equal to 25% of the original
principal amounts under the Tranche B Credit Agreement;
	 
	 	(ii)	 	second, to the payment of unpaid accrued
interest on the Tranche C Loans, in accordance with the
Tranche C Credit Agreement;
	 
	 	(iii)	 	third, to the declaration and payment of
dividends on the First Preferred Shares;
	 
	 	(iv)	 	fourth, subject to Section 2.2(g), until
the fifth anniversary of the Effective Date, on a pro rata
basis, to the permanent rateable prepayment of the Tranche
C Loans, up to a maximum aggregate amount equal to 25% of
the original principal amount of the Tranche C Loans, and
the redemption of up to 75% of the First Preferred Shares
issued on the Effective Date;
	 
	 	(v)	 	fifth, to the declaration and payment of
dividends on the Second Preferred Shares;
	 
	 	(vi)	 	sixth, until the fifth anniversary of the
Effective Date, to the redemption of up to 75% of the
number of Second Preferred Shares issued on the Effective
Date;



 






 






- 14 -




	 	(vii)	 	seventh, after the fifth anniversary of
the Effective Date, on a pro rata basis, to repayment of
the remaining principal amount of Tranche C Loans and
redemption of the remaining First Preferred Shares issued
on the Effective Date; and
	 
	 	(viii)	 	eighth, after the fifth anniversary of the Effective
Date, to redemption of the remaining Second Preferred
Shares issued on the Effective Date.
	 
	 	If, at the time of any Mandatory Prepayment, First Units and Second
Units are issued and outstanding, then Mandatory Prepayments made
pursuant to this Section 2.2 shall be applied sequentially, in the
following priority (but subject always to the proviso in Section
2.2(b), and subject to the maintenance of a minimum consolidated
cash balance (which shall include all cash, cash equivalents and
short-term investments) of at least Cdn.$45,000,000, prior to the
Parent’s 25% share of any Excess Cash Flow):
	 
	 	(ix)	 	first, subject to Section 2.2(f), to the
permanent rateable prepayment of the principal amounts
outstanding under the Tranche B Credit Agreement, up to a
maximum aggregate amount equal to 25% of the original
principal amounts under the Tranche B Credit Agreement;
	 
	 	(x)	 	second, to the payment of unpaid accrued
interest on the Tranche C Loans, in accordance with the
Tranche C Credit Agreement;
	 
	 	(xi)	 	third, on a pro rata basis, subject to
Section 2.2(g), to the rateable prepayment of the Tranche
C Loans and the rateable redemption of the First Units;
provided that (A) until the fifth anniversary of the
Effective Date, the amount allocated to the Tranche C
Loans under this Section 2.2(d)(xi) shall be limited to a
maximum aggregate amount equal to 25% of the original
principal amount of the Tranche C Loans (without affecting
the entitlement of the holders of First Units), and (B)
from the date on which the First Units are issued until
the fifth anniversary of the date on which the First Units
are issued, the aggregate of all amounts allocated to the
First Units under this Section 2.2(d)(xi) and Section
2.2(d)(xiii) shall be limited to a maximum aggregate
amount equal to 25% of the original principal amount of
the First Notes (without affecting the entitlement of the
holders of Tranche C Loans);
	 
	 	(xii)	 	fourth, until the fifth anniversary of
the date on which the Second Units are issued, to the
rateable redemption of the Second Units, up to a maximum
aggregate amount equal to 25% of the original principal
amount of the Second Notes;
	 
	 	(xiii)	 	fifth, after the fifth anniversary of the Effective
Date, on a pro rata basis, to repayment of the remaining
principal amount of Tranche C Loans and redemption of the
remaining First Units; provided that, from the date on
which the First Units are issued until the fifth
anniversary of the date on which the First Units are
issued, the aggregate of all amounts allocated to



 






 





- 15 -




	 	 	 	the First Units under this Section 2.2(d)(xiii) and Section
2.2(d)(xi) shall be limited to a maximum aggregate amount
equal to 25% of the original principal amount of the First
Notes (without affecting the entitlement of the holders of
Tranche C Loans); and
	 
	 	(xiv)	 	sixth, after the fifth anniversary of
the date on which the Second Units are issued, to
redemption of the remaining Second Units.
	 


	 	 	 	Any amount payable under this Section 2.2 to the holders of First
Preferred Shares, Second Preferred Shares, First Units or Second
Units shall be paid by the Collateral Agent to the transfer agent
or trustee for the First Preferred Shares, Second Preferred Shares,
First Units and Second Units, as applicable, and in consultation
with the Parent so as to assist the Parent in coordinating the
making of required payments, and the Collateral Agent shall not be
responsible for any ultimate distribution to the holders thereof.
Any amount remaining after the application of payments above shall
be paid to the Parent or as otherwise required by applicable law.
	 


	 	(e)	 	In the case of any payment pursuant to any of Sections
2.2(a), (b) or (c) of this Agreement, the Borrower shall provide to
the Collateral Agent written notice of such payment at least three
Business Days prior to the date such payment is to be made. If any
such notice is given, the amount specified in such notice shall be
due and payable on the date specified in such notice, together with
any amounts payable pursuant to Section 2.10 of the Tranche A Exit
Facility Agreement, Section 2.10 of the Tranche B Credit Agreement
or Section 2.7 of the Tranche C Credit Agreement, as applicable.
Upon receipt of any notice given pursuant to this Section 2.2(e),
the Collateral Agent shall promptly notify each affected party of
the contents thereof and of such party’s Pro Rata Share of such
payment.
	 
	 	(f)	 	If a Mandatory Prepayment required by Section 2.2(d)(i) or
Section 2.2(d)(ix) would result in the repayment of an amount
exceeding 25% of the aggregate original principal amount of the
Tranche B Loans (the “Tranche B Tax Threshold Amount”) to be repaid
on or before the fifth anniversary of the Effective Date, taking
into account all Amortization Payments (as defined in the Tranche B
Credit Agreement) and all Mandatory Prepayments made to the Tranche
B Lenders pursuant to Sections 2.2(a) and (c) (but, for greater
certainty, not taking into account any Mandatory Prepayments made to
the Tranche B Lenders pursuant to Section 2.2(b), or any voluntary
prepayments), then, notwithstanding Section 2.2(d)(i) or Section
2.2(d)(ix), that Mandatory Prepayment shall not be paid to the
Tranche B Lenders, to the extent that such amount would cause the
Tranche B Tax Threshold Amount to be exceeded, and shall instead be
applied pursuant to Sections 2.2(d)(ii) through (viii) or Sections
2.2(d)(x) through (xiv), subject to the limitations provided
therein.
	 
	 	(g)	 	If a Mandatory Prepayment required by Section 2.2(d)(iv) or
Section 2.2(d)(xi) would result in the repayment of an amount
exceeding 25% of the aggregate original principal amount of the
Tranche C Loans (the “Tranche C Tax Threshold Amount”) to be repaid
on or before the fifth anniversary of the Effective Date,



 






 






- 16 -




	 	 	 	taking into account all Mandatory Prepayments made to the Tranche C
Lenders pursuant to Sections 2.2(a) and (c) (but, for greater
certainty, not taking into account any Mandatory Prepayments made
to the Tranche C Lenders pursuant to Section 2.2(b), or any
voluntary prepayments), then, notwithstanding Section 2.2(d)(iv) or
Section 2.2(d)(xi), that Mandatory Prepayment shall not be paid to
the Tranche C Lenders, to the extent that such amount would cause
the Tranche C Tax Threshold Amount to be exceeded, and shall
instead be applied pursuant to Sections 2.2(d)(v) through (viii) or
Section 2.2(d)(xii) through (xiv), subject to the limitations
provided therein.



2.3     Asset Sales. Prior to a Standstill Event, and notwithstanding any
provision of this Agreement, the New Debt Instruments or the Security Documents
to the contrary:



	 	(a)	 	the Collateral Agent shall be entitled to release from the
hypothecs, security interests and other Liens constituted by any of
the Security Documents any asset which is the subject of an Asset
Disposition, provided that (i) such Asset Disposition is permitted
under the Tranche A Exit Facility Agreement and under the Tranche B
Credit Agreement (no such permission being required under the
Tranche C Credit Agreement), or (ii) such Asset Disposition has been
approved in writing by the “Required Lenders” under the Tranche A
Exit Facility Agreement and the “Required Lenders” under the Tranche
B Credit Agreement (no such approval being required under the
Tranche C Credit Agreement); and
	 
	 	(b)	 	the Collateral Agent shall be entitled to execute and
register (or cause any trustee or fondé de pouvoir (person holding
the power of attorney) acting for or on behalf of the Collateral
Agent or the Creditors to execute and register) any releases or
discharges which may be necessary or desirable in connection with
any Asset Disposition effected pursuant to this Section 2.3.



2.4     Prohibited Payments. Except as otherwise expressly provided herein, the
Credit Parties will not make and will not be entitled to make, and the Tranche
B Lenders will not accept and will not be entitled to accept, any payment or
prepayment of any principal, interest or other amount in respect of the Tranche
B Obligations, whether in the form of cash, securities or other forms of
property, by the exercise of a right of set off or other similar right or
remedy, or in any other manner, without the prior consent of the Tranche A
Lenders. Except as otherwise expressly provided herein, the Credit Parties
will not make and will not be entitled to make, and the Tranche C Lenders will
not accept and will not be entitled to accept, any payment or prepayment of any
principal, interest or other amount in respect of the Tranche C Obligations,
whether in the form of cash, securities or other forms of property, by the
exercise of a right of set off or other similar right or remedy, or in any
other manner, without the prior consent of the Tranche A Lenders and the
Tranche B Lenders. Except as otherwise expressly provided herein, the Credit
Parties will not make and will not be entitled to make, and the holders of
First Units will not accept and will not be entitled to accept, any payment or
prepayment of any principal, interest or other amount in respect of First
Units, whether in the form of cash, securities or other forms of property (for
greater certainty, not including shares, First Units or Second Units), by the
exercise of a right of set off or other similar right or remedy, or in any
other manner, without the prior consent of the Tranche A Lenders, the Tranche B
Lenders and the Tranche C Lenders. Except as otherwise expressly provided
herein, the Credit Parties will not make and will not be

 






 






- 17 -



entitled to make, and the holders of Second Units will not accept and will not
be entitled to accept, any payment or prepayment of any principal, interest or
other amount in respect of Second Units, whether in the form of cash,
securities or other forms of property (for greater certainty, not including
shares, First Units or Second Units), by the exercise of a right of set off or
other similar right or remedy, or in any other manner, without the prior
consent of the Tranche A Lenders, the Tranche B Lenders, the Tranche C Lenders
and the holders of First Preferred Units.


2.5     Permitted Payments. Prior to a Standstill Event, the Credit Parties may
make, and the Tranche B Lenders may receive, scheduled payments of principal
and interest owing by the Borrower to the Tranche B Lenders in accordance with
the Tranche B Credit Agreement, and any Mandatory Prepayments to which the
Tranche B Lenders are entitled in accordance with Section 2.2 of this
Agreement, and any fee, expense reimbursement, indemnification claim or other
claim provided for in the Tranche B Credit Agreement. After a Standstill
Event, the Borrower may not make, and the Tranche B Lenders may not receive,
payment on account of the Tranche B Obligations except in accordance with
Section 2.1. Prior to a Standstill Event, the Credit Parties may make, and the
Tranche C Lenders may receive, scheduled payments of principal and interest
owing by the Borrower to the Tranche C Lenders in accordance with the Tranche C
Credit Agreement, and any Mandatory Prepayments to which the Tranche C Lenders
are entitled in accordance with Section 2.2 of this Agreement, and any fee,
expense reimbursement, indemnification claim or other claim provided for in the
Tranche C Credit Agreement. After a Standstill Event, the Borrower may not
make, and the Tranche C Lenders may not receive, payment on account of the
Tranche C Obligations except in accordance with Section 2.1. Prior to a
Standstill Event, the Parent may make, and the holders of First Units may
receive, payments in accordance with Section 2.2 of this Agreement. After a
Standstill Event, the Parent may not make, and the holders of First Units may
not receive, any payment on account of the First Units unless all Tranche A
Obligations, Tranche B Obligations and Tranche C Obligations are indefeasibly
paid in full. Prior to a Standstill Event, the Parent may make, and the
holders of Second Units may receive, payments in accordance with Section 2.2 of
this Agreement. After a Standstill Event, the Parent may not make, and the
holders of Second Units may not receive, any payment on account of the Second
Units unless all Tranche A Obligations, Tranche B Obligations, Tranche C
Obligations and First Units are indefeasibly paid in full.


2.6     Consent of Creditors. Each Creditor consents to the granting or assuming
by the Credit Parties of the security constituted by the Security Documents and
the incurring or assuming by the Credit Parties of the Obligations, and
confirms that such action does not and will not constitute a default under or
otherwise contravene any terms of the Obligations held by such Creditor.


2.7     Application of the Agreement. The rights of the Creditors and the
priorities of the Obligations set out in this Agreement will apply irrespective
of any matter or thing, including (a) the validity or enforceability of any of
the Security Documents; (b) the time of creation, granting, execution,
delivery, attachment, registration (to the extent registration is required),
perfection or enforcement of any of the Security Documents; (c) the
jurisdictions where any of the Security Documents is registered or the failure
of any Creditor or the Collateral Agent to properly register or perfect any of
the Security Documents in any particular jurisdiction; (d) the time of any loan
or advance or other extension of credit made to the Borrower by any Creditor;
(e) the time of Default or demand or the dates of crystallization of any
floating charge;


 






 


- 18 -



(f)  any priority otherwise accorded to the Security Documents (or any of them) by any
principle of law or by any statute; (g) the provisions of the instruments
creating any of the Security Documents; or (h) any other matter whatsoever.


2.8     Payments Held in Trust. If any payment is made to or received by a
Subordinate Creditor in contravention of this Agreement, such Subordinate
Creditor will hold such payment in trust for the Senior Creditors and will
forthwith pay such payment to the Collateral Agent for application against the
Obligations of the Credit Parties to the Senior Creditors or as otherwise
required by this Agreement. Any action taken or thing done by a Creditor in
contravention of this Agreement will be null and void and of no effect. Each
Subordinate Creditor agrees that, if all or any part of any payment made on
account of the Obligations held by a Senior Creditor is recovered from such
Senior Creditor as a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or other law, any payment or distribution received
by such Subordinate Creditor on its Obligations will be deemed to have been
received by it in trust for the Senior Creditors and will promptly be paid over
to the Collateral Agent for the benefit of the Senior Creditors entitled
thereto.


2.9     Pledged Shares. The Creditors acknowledge that the Equity Securities of
all direct and indirect subsidiaries of the Parent are required to be pledged
by the relevant shareholder to the Collateral Agent on behalf of the Creditors,
and that the Collateral Agent is holding such Equity Securities. The
Collateral Agent agrees to hold such Equity Securities on behalf of all of the
Creditors in accordance with the priorities set forth in this Agreement.


ARTICLE 3



ENFORCEMENT AND REMEDIES


3.1     Enforcement. If a Default has occurred and is continuing, the Required
Creditors may direct the Collateral Agent to take any or all of the following
actions:



	 	(a)	 	to exercise or enforce any rights or remedies of the
Collateral Agent under the applicable Security Documents; and
	 
	 	(b)	 	without limitation, to take or exercise any other action,
suit, remedy or proceeding authorized or permitted by any of the
Security Documents or applicable law;



provided, however, that if any events or circumstances of the type described
under any of clauses (h), (i) or (j) of Section 7.1 of the Tranche B Credit
Agreement or any equivalent section in any other New Debt Instrument shall have
occurred, the Collateral Agent may do any of the foregoing without the need for
directions from the Required Creditors. If the Required Creditors shall have
directed the Collateral Agent to cause the exercise or enforcement of rights or
remedies under any of the Security Documents, then subject to Article 4 of this
Agreement, the Collateral Agent shall so exercise or enforce rights or remedies
under the relevant Security Documents and shall so notify the Creditors. If
the Collateral Agent has caused the exercise or enforcement of rights or
remedies under any of the Security Documents in circumstances where no
directions from the Required Creditors are required pursuant to this Section
3.1, the Collateral Agent shall so notify the Creditors. If a Default in
respect of any Subordinate Obligations has occurred and is continuing for a
period of at least 30 days after a Standstill Event, and if during such 30 day
period the Senior Creditors have not taken steps, or advised the Collateral
Agent that


 






 


- 19 -



they intend actively to take steps, to exercise or enforce rights or remedies
under the relevant Security Documents, or to take or exercise any other action,
suit, remedy or proceeding authorized or permitted by any of the Security
Documents or applicable law, then the Subordinate Creditors shall be entitled
to take steps to exercise or enforce rights or remedies under their Security
Documents, subject always to the provisions of Section 2.1 hereof, and subject
always to the right of the Senior Creditors, at any time, to take over the
direction of the exercise or enforcement of rights and remedies under the
Security Documents, or to take or exercise any other action, suit, remedy or
proceeding authorized or permitted by any of the Security Documents or
applicable law.


3.2     Cooperation and Information. If the Required Creditors shall have directed
the Collateral Agent to cause the enforcement of any of the Security Documents
or the Collateral Agent has caused enforcement of any of the Security Documents
in circumstances where no directions from the Required Creditors are required
as contemplated in Section 3.1, each Creditor hereby agrees that it will fully
cooperate and reasonably consult with the other Creditors with a view to
maximizing the Proceeds of Realization. Each Creditor will, upon request, from
time to time advise the other Creditors in writing of the amount of the Tranche
A Obligations, the Tranche B Obligations and the Tranche C Obligations, as the
case may be, owing to such Creditor. The Parent and the Borrower hereby
consent to such cooperation, consultation and disclosure.


3.3     No Challenge. No party hereto will take or support any action to challenge
the validity or enforceability of any of the Security Documents or the priority
entitlement of any other party hereto to receive payments from the Credit
Parties as contemplated hereunder.


3.4     Notice. If any Creditor or group of Creditors wishes to issue directions
to the Collateral Agent under Section 3.1, such Creditor shall so notify the
Collateral Agent and the other Creditors.


ARTICLE 4



THE COLLATERAL AGENT; MISCELLANEOUS


4.1     Authorization of Collateral Agent. Each of the Tranche A Lenders (for
itself and any of its Affiliates which may become a Tranche A Swap
Counterparty, and also in the capacity of “Issuing Bank” under the Tranche A
Exit Facility Agreement) and the Tranche A Administrative Agent irrevocably
appoints and authorizes the Collateral Agent to act as its collateral agent
under the Tranche A Security Documents and to hold the security constituted
thereby (including the pledge or re-pledge of any and all bonds issued by the
Borrower under and secured by any deed of hypothec and issue of bonds) for the
benefit of the Tranche A Lenders, any Affiliate of a Tranche A Lender which may
become a Tranche A Swap Counterparty, and the Tranche A Administrative Agent,
and to exercise all powers granted under the Tranche A Security Documents,
together with all powers reasonably incidental thereto and the Collateral Agent
hereby accepts such appointment. Each of the Tranche B Lenders and the Tranche
B Administrative Agent irrevocably appoints and authorizes the Collateral Agent
to act as its collateral agent under the Tranche B Security Documents and to
hold the security constituted thereby (including the pledge or re-pledge of any
and all bonds issued by the Borrower under and secured by any deed of hypothec
and issue of bonds) for the benefit of the Tranche B Lenders and the Tranche B
Administrative Agent, and to exercise all powers granted under the Tranche B


 






 


- 20 -



Security Documents, together with all powers reasonably incidental thereto and
the Collateral Agent hereby accepts such appointment. Each of the Tranche C
Lenders and the Tranche C Administrative Agent irrevocably appoints and
authorizes the Collateral Agent to act as its collateral agent under the
Tranche C Security Documents and to hold the security constituted thereby
(including the pledge or re-pledge of any and all bonds issued by the Borrower
under and secured by any deed of hypothec and issue of bonds) for the benefit
of the Tranche C Lenders and the Tranche C Administrative Agent, and to
exercise all powers granted under the Tranche C Security Documents, together
with all powers reasonably incidental thereto and the Collateral Agent hereby
accepts such appointment. The Collateral Agent shall have no duties or
responsibilities except those expressly set forth herein. The Collateral Agent
shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights which may be vested in it by, and with
respect to taking or refraining from taking any action or actions which it may
be able to take under or in respect of, this Agreement and the applicable
Security Documents, unless the Collateral Agent shall have been directed to
exercise such rights or to take or refrain from taking such action, and the
Collateral Agent may from time to time request direction in this regard. The
Collateral Agent shall not incur any liability for anything which it may do or
refrain from doing in the reasonable exercise of its judgement or which may
seem to it to be necessary or desirable in the circumstances, except for its
gross negligence or wilful misconduct. The Collateral Agent shall not be
required to take any action which it determines to be contrary to the
applicable Security Documents or any applicable law. As to matters not
expressly provided for by this Agreement, the Collateral Agent is not required
to exercise any discretion or to take any action (and is fully protected in so
acting or refraining from acting) except upon the directions of the Required
Creditors. The Collateral Agent may, at any time, request directions or
instructions from the Required Creditors with respect to any actions or
approvals which, by the terms of any of this Agreement or the applicable
Security Documents, the Collateral Agent is permitted or required to take or to
grant, and the Collateral Agent shall be absolutely entitled to refrain from
taking any such action or to withhold any such approval and shall not be under
any liability whatsoever as a result thereof until it shall have received such
directions or instructions from the Required Creditors. The Collateral Agent
may (but need not) require that any directions of the Required Creditors be
provided in writing. Except as expressly otherwise provided herein, the
Creditors will act through the Collateral Agent with respect to any action
which they may be able to take under or in respect of any of the Security
Documents or the Collateral. The Collateral Agent hereby agrees with the
Creditors that, with respect to all matters relating to any of the Security
Documents, the Collateral Agent is not acting as collateral agent for any
Person other than the Creditors and the Collateral Agent hereby agrees with the
Creditors that, subject to the right of the Collateral Agent to resign in
accordance with Section 4.10 of this Agreement, the Collateral Agent shall
continue to act as collateral agent under the Security Documents and to hold
the security constituted thereby for the sole and exclusive benefit of the
Creditors in accordance with the terms and conditions of this Agreement and not
in any other capacity without the prior written consent of all the Creditors.


4.2     Reliance on Writings and Legal Advice. The Collateral Agent shall be
entitled to rely upon any writing, notice, certificate, telecopy or facsimile
message, telex, cable, statement, order or other document or telephone
conversation believed by the Collateral Agent to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and with
respect to legal matters, to act upon advice of legal advisers selected by the
Collateral Agent concerning all matters pertaining to this Agreement and its
duties hereunder.


 






 


- 21 -



4.3     Costs and Expenses. Each Creditor agrees that it will, on demand,
reimburse the Collateral Agent for its Pro Rata Share of any and all reasonable
costs, expenses and disbursements (excluding normal overhead and salary
expenses of the Collateral Agent’s employees incurred in connection with the
normal operation of this Agreement) which may be incurred or made by the
Collateral Agent in connection with the performance and enforcement of this
Agreement or of any of the Security Documents for which the Collateral Agent is
not promptly reimbursed at any time by or on behalf of the Borrower (the
Borrower hereby undertaking to effect such reimbursement promptly upon demand
by the Collateral Agent), except to the extent such costs, expenses or
disbursements arise out of the Collateral Agent’s gross negligence or wilful
misconduct. The Collateral Agent shall not be obliged to expend its own funds
or otherwise incur any financial obligations in connection with this Agreement
or any of the Security Documents unless the Collateral Agent is so reimbursed.


4.4     Authority of Collateral Agent to Act. The Collateral Agent shall have the
right, subject to the provisions of this Agreement, to take such actions as it
deems fit or refrain from taking any action, or to give agreements, consents,
approvals or instructions to the Borrower on behalf of the Creditors in respect
of all matters relating to the enforcement of any of the Security Documents;
provided, however, that the Collateral Agent shall not waive a Default, or in
respect of any matter relating to the enforcement of any of the Security
Documents, make any decision or give any consent which could materially impact
the Creditors’ interests unless so directed by the Required Creditors in
respect thereof. Any directions given by the Required Creditors to the
Collateral Agent in respect of matters relating to the enforcement of the
applicable Security Documents or otherwise specifically referred to in this
Agreement as being governed by a decision of the Required Creditors pursuant to
this Agreement shall be binding on all Creditors.


4.5     Disclaimer. The Collateral Agent shall not be liable to any Creditor for
any error of judgement or for any action taken or omitted by the Collateral
Agent or with respect to anything which the Collateral Agent may do or refrain
from doing in the reasonable exercise of its own judgement or which may seem to
the Collateral Agent to be necessary or desirable in the circumstances, except
gross negligence or wilful misconduct. If the Collateral Agent exercises the
same care in administering the Security Documents as the Collateral Agent
exercises with respect to credit facilities which the Collateral Agent alone
makes, the Collateral Agent shall have no further responsibility to the
Creditors. In all cases, the Collateral Agent shall be fully protected in
acting or refraining from acting under the Security Documents in accordance
with the directions of the Required Creditors.


4.6     Indemnification. Each Creditor agrees to indemnify the Collateral Agent
(to the extent not reimbursed by the Borrower (the Borrower hereby undertaking
to effect such reimbursement promptly upon demand by the Collateral Agent))
rateably in accordance with its Pro Rata Share from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgements,
suits, costs, expenses, taxes or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by, or asserted against the
Collateral Agent in its capacity as such in any way relating to or arising out
of this Agreement or any other documents contemplated by or referred to herein
or the transactions contemplated hereby (including the costs and expenses which
the Borrower is obligated to pay) or any action taken or omitted by the
Collateral Agent in enforcing any of the terms hereof or preserving any rights
hereunder; provided, that no Creditor shall be liable for any of the foregoing
to the extent they arise from the


 






 


- 22 -



Collateral Agent’s gross negligence or wilful
misconduct. Without limiting the generality of the
foregoing, each Creditor agrees to reimburse the Collateral Agent promptly upon
demand for its Pro Rata Share of out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by the Collateral Agent in connection with
the determination or preservation of any rights of the Collateral Agent or the
Creditors under, or the enforcement of, or legal advice in respect of rights or
responsibilities under this Agreement, to the extent that the Collateral Agent
is not reimbursed for such expenses by the Borrower (the Borrower hereby
undertaking to effect such reimbursement promptly upon demand therefore by the
Collateral Agent).


4.7     Acknowledgement of Creditors. Each Creditor acknowledges to the Collateral
Agent that it has been, and will continue to be, solely responsible for making
its own independent appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature of the Borrower and
accordingly each Creditor confirms to the Collateral Agent that it has not
relied, and will not hereafter rely on the Collateral Agent (i) to check or
enquire on its behalf into the adequacy, accuracy or completeness of any
information provided by the Borrower or in connection with this Agreement
(whether or not such information has been or is hereafter circulated to such
Creditor by the Collateral Agent), or (ii) to assess or keep under review on
its behalf the financial condition, creditworthiness, affairs, status or nature
of the Borrower. Without limiting any other provision hereof that is
protective of the Collateral Agent, each Creditor separately acknowledges that
the Collateral Agent, after consultation with certain of the Creditors and
Credit Parties, has determined that certain steps necessary and/or desirable to
perfect the Liens and/or enforcement rights of the Collateral Agent should not
be taken, because of time and expense constraints and for other reasons, and
that each Creditor has been advised as to the limitations upon the scope of the
Collateral Agent’s perfected Liens, has been advised as to steps the Collateral
Agent has determined should not be taken to perfect the Collateral Agent’s
Liens and/or enforcement rights, and has independently concluded that the
Creditor is willing to proceed with the transactions contemplated by this
Agreement notwithstanding the limitations upon the perfection and/or
enforcement rights of the Collateral Agent as a result of such determinations.
In general, each Creditor acknowledges its familiarity with, and agreement to
proceed, notwithstanding the fact that: (i) the Collateral Agent has relied
upon the Credit Parties to identify, inventory and provide valuations of the
real and personal properties owned by the Credit Parties, and relevant
information regarding such real and personal property, without obtaining
independent corroboration or verification of such information provided by the
Credit Parties; (ii) the Collateral Agent has relied upon the Credit Parties
and counsel to the Credit Parties to identify and provide relevant information
with respect to the Credit Parties’ ownership rights with respect to, and with
respect to prior Liens upon title to, the real and personal properties owned by
the Credit Parties without obtaining independent searches of such titles and
Liens and without obtaining independent information regarding the relevant
information relating to such titles and Liens; (iii) the Collateral Agent has
selectively honored the requests of the Credit Parties that the Collateral
Agent not expend the resources necessary to perfect Liens upon assets of the
Credit Parties represented by the Credit Parties to be of less than material
value given the magnitude of the Obligations; (iv) the Collateral Agent has
honored the requests of the Credit Parties that certain Affiliates of the
Credit Parties not be financially responsible for the Obligations. In
particular, each Creditor acknowledges its familiarity with, and agreement to
proceed notwithstanding each of the matters set forth on Schedule A attached
hereto with respect to such matters.


 






 


- 23 -



4.8     Duty of Collateral Agent to Deliver Documents. The Collateral Agent shall
promptly distribute to, or otherwise make available to each Creditor, such
documents, papers,
materials and other information as are furnished by the Borrower to the
Collateral Agent, or by the Collateral Agent to the Borrower, in each case
pursuant to this Agreement or the applicable Security Documents, but shall have
no other obligation to provide any Creditor with any credit or other
information whatsoever with respect to the Borrower and shall be under no
obligation to inquire as to the performance by the Borrower of its obligations
hereunder. Distribution of documents, papers, materials and other information
may (but need not) be effected by granting to the Creditors electronic access
to same.


4.9     No Association among Creditors. Nothing contained in this Agreement and no
action taken pursuant to it shall, or shall be deemed to, constitute the
Creditors a partnership, association, joint venture or other similar entity.


4.10     Successor Collateral Agent. Subject to the appointment and acceptance of
a successor agent as provided in this Section 4.10, the Collateral Agent may
resign at any time by giving 30 days’ prior written notice thereof to the
Creditors and the Borrower and the Collateral Agent may be removed at any time
for cause by the Required Creditors in respect thereof. Upon any such
resignation or removal, the Required Creditors shall have the right to appoint
a successor agent. Any successor agent which may be appointed under this
Section 4.10 shall be a Creditor or an Affiliate of a Creditor which has an
office in Montreal or Toronto or is a reputable financial institution which has
an office in Montreal or Toronto. If no such successor agent shall have been
appointed by the Required Creditors and shall have accepted such appointment
within 30 days after the retiring agent’s giving of notice of resignation or
the Required Creditors’ removal of the retiring agent, then the retiring agent
may, on behalf of the Creditors, appoint a successor agent, which shall be a
reputable financial institution having an office in Montreal or Toronto. Upon
the acceptance of any appointment as Collateral Agent by a successor agent,
such successor agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, obligations and duties of the retiring agent and
shall be deemed for the purposes of this Agreement and all Financing Documents
to be the Collateral Agent and such retiring agent shall be discharged from its
duties and obligations under this Agreement. After any such retiring agent’s
resignation, removal or replacement hereunder as Collateral Agent, the
provisions of this Agreement shall continue in effect for its benefit and for
the benefit of the Creditors in respect of any actions taken or omitted to be
taken by the retiring agent while it was acting as Collateral Agent.


4.11     No Third Party Rights Established. No creditor of the Borrower or other
Person which is not a party to this Agreement will derive any rights or
benefits hereunder.


4.12     Waivers and Amendments. No party to this Agreement will, by any act or
delay, be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of
either party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder will preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by either party of any right
or remedy hereunder on any one occasion will not be construed as a bar to any
right or remedy which such party would otherwise have on any future occasion.


 






 


- 24 -



4.13     Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective
to the extent of such prohibition or unenforceability and will be severed from
the balance of this Agreement, all without affecting the remaining provisions
of this Agreement or affecting the validity or enforceability of such provision
in any other jurisdiction.


4.14     Successors and Assigns. This Agreement and all rights and interests of
the Creditors under the Security Documents will enure to the benefit of, and be
binding on, the parties hereto and their successors and permitted assigns (as
stipulated in the Tranche A Exit Facility Agreement, the Tranche B Credit
Agreement or the Tranche C Credit Agreement, as applicable); provided, however,
that as a condition precedent of any such assignment, the assignee must agree
in writing to be bound by and act in accordance with the terms, provisions and
intent of this Agreement. The parties hereto agree that any assignment by a
Creditor in accordance with this Section 4.14 of any of its rights under this
Agreement or any of the Security Documents shall be effective and binding on
all the parties hereto and that the assignee of such rights and interests shall
thereafter be and be treated as a Creditor hereunder and under the applicable
Security Documents for all purposes hereof and thereof and shall, to the extent
of the rights and interests assigned to it by the assignor, be entitled to the
full benefits and subject to the full obligations of the assignor hereunder and
thereunder to the same extent as if the assignee were an original party in
respect of the rights and interests assigned to it.


4.15     Counterparts; Binding Nature. This Agreement may be executed in any
number of counterparts, all of which will be deemed to be an original and such
counterparts taken together will constitute one agreement and any of the
parties hereto may execute this Agreement by signing any such counterpart.
This Agreement shall be effective when each party hereto has executed a
counterpart and has delivered the same to the Collateral Agent. Delivery of an
executed signature page to this Agreement by any party by facsimile
transmission shall be as effective as delivery of a manually executed copy of
this Agreement by such party.


4.16     Further Assurances. The parties hereto agree to execute and deliver such
further and other documents and perform and cause to be performed such further
and other acts and things as may be necessary or desirable in order to give
full effect to this Agreement and every part thereof, including all acts, deeds
and agreements as may be necessary or desirable for the purpose of enforcement
of the Security Documents pursuant to the terms of this Agreement and
registering or filing notice of the terms of this Agreement. No party to this
Agreement will take any action whereby the pro rata sharing arrangements set
out in this Agreement might be impaired or defeated.


4.17     Communication. Any communication required or permitted to be given under
this Agreement will be in writing and will be effectively made and given if (i)
delivered personally, (ii) sent by prepaid courier service, or (iii) sent
prepaid by facsimile transmission or other similar means of electronic
communication, in each case to the address or facsimile number of the relevant
party set out opposite such party’s name in the execution pages of this
Agreement. Any communication so given will be deemed to have been given and to
have been received on the day of delivery if so delivered, or on the day of
facsimile transmission or sending by other means of recorded electronic
communication provided that such day is a Business Day and the communication is
so delivered or sent prior to 4:30 p.m. (local time at the place of receipt).
Otherwise, such communication will be deemed to have been given and to have
been


 






 


- 25 -



received on the following Business Day. Any party to this Agreement may from
time to time change its respective address or facsimile number for notice by
giving notice to the other parties hereto in accordance with the provisions of
this Section 4.17.


4.18     Quebec Security. For greater certainty, and without limiting the powers
of the Administrative Agent or the Collateral Agent, or any other Person acting
as an agent or mandatary for such Agents hereunder or under any of the other
Financing Documents, the Borrower and the Parent hereby acknowledge that, for
purposes of holding any security granted by any Credit Party on property
pursuant to the laws of the Province of Quebec to secure obligations of the
Borrower or any other Credit Party under any bond or other title of
indebtedness issued by the Borrower or any other Credit Party, the Collateral
Agent shall be the holder of an irrevocable power of attorney (fondé de pouvoir
within the meaning of Article 2692 of the Civil Code of Quebec) for (i) all
present and future Creditors, including any Tranche A Lender that makes
available to the Borrower any Permitted Additional Exit Facility Debt, and (ii)
any Affiliate of any Tranche A Lender that may from time to time enter into
Swap Agreements with the Borrower and in particular, for all present and future
holders of any such bond or other title of indebtedness. Each Creditor, for
itself, and in respect of the Tranche A Lenders on behalf of any of its
Affiliates that enter into Swap Agreements with the Borrower, hereby (i)
irrevocably constitutes, to the extent necessary the Collateral Agent as the
holder of an irrevocable power of attorney (fondé de pouvoir within the meaning
of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and
security granted by the Borrower or any other Credit Party on property pursuant
to the laws of the Province of Quebec to secure obligations of Borrower or any
other Credit Party under any bond or other title of indebtedness issued by the
Borrower or any other Credit Party; and (ii) appoints and agrees that the
applicable Administrative Agent may act as the bondholder and mandatary with
respect to any bond or other title of indebtedness that may be issued by any
Credit Party and pledged from time to time for the benefit of the Creditors,
(including any Persons that become Tranche A Lenders pursuant to the extention
of any Permitted Additional Exit Facility Debt) and any Affiliates of the
Tranche A Lenders that enter into Swap Agreements.


The constitution of the Collateral Agent as the holder of such irrevocable
power of attorney (fondé de pouvoir) and the applicable Administrative Agent as
bondholder and mandatary with respect to any bond or other title of
indebtedness that may be issued by any Credit Party and pledged from time to
time for the benefit of the Creditors, the Persons (including any Tranche A
Lenders) that make available Permitted Additional Exit Facility Debt and any
Affiliates of the Tranche A Lenders that enter into Swap Agreements shall be
deemed to have been ratified and confirmed as follows:



	(i)	 	by any assignee of a Creditor, by the execution of an Assignment and
Assumption under the relevant New Debt Instrument;
	 
	(ii)	 	by any Person that provides Permitted Additional Exit Facility Debt, by
the execution of a supplemental agreement to the Tranche A Exit Facility
Agreement; and
	 
	(iii)	 	by any Affiliate of a Tranche A Lender that enters into a Swap
Agreement, by the execution of the relevant Swap Agreement.



 






 






- 26 -



Notwithstanding the provisions of Section 32 of the An Act respecting the
special powers of legal persons (Quebec), the Administrative Agent or the
Collateral Agent may purchase, acquire and be the holder of any bond or other
title of indebtedness issued by the Borrower or any other Credit Party (i.e.
the fondé de pouvoir may acquire and hold the first bond issued under any deed
of hypothec by the Borrower or any Credit Party). The Borrower and each Credit
Party hereby acknowledge that any such bond shall constitute a title of
indebtedness, as such term is used in Article 2692 of the Civil Code of Quebec.


The Collateral Agent herein appointed as fondé de pouvoir shall have the same
rights, powers and immunities as the Agents as stipulated herein, including
under this Section 4, which shall apply mutatis mutandis. Without limitation,
the provisions of Section 4.10 shall apply mutatis mutandis to the resignation
and appointment of a successor Collateral Agent acting as fondé de pouvoir.


4.19     Entire Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes any
prior agreements, undertakings, declarations, representations and
understandings, both written and verbal, in respect of the subject matter
hereof, provided, however, that nothing in this Agreement is to be construed as
effecting any novation of any of the rights of the Collateral Agent and the
Creditors under any of the Security Documents and the security constituted
thereby, all such rights being hereby expressly reserved. There are no
restrictions, agreements, promises, warranties, covenants or undertakings
relating to the subject matter hereof other than those set forth in this
Agreement.


4.20     Trustee. The Parent, the Borrower, the Creditors, the Administrative
Agent, the Collateral Agent and the Fondé de Pouvoir acknowledge that,
notwithstanding the terms of this Agreement, (a) the First Units Trustee and
the Second Units Trustee are not entering into this Agreement on the date
hereof because the trust indentures governing the First Units and the Second
Units (the “Unit Indentures”) have not been executed, (b) the Parent and the
Borrower have undertaken to execute and deliver Unit Indentures satisfactory to
the Parent, the First Units Trustee, the Second Units Trustee and the
Collateral Agent on or before May 31, 2003 and, substantially contemporaneously
with the execution and delivery of the Unit Indentures, to cause the First
Units Trustee and the Second Units Trustee to enter into this Agreement, (c)
until the Parent, the First Units Trustee and the Second Units Trustee enter
into the Unit Indentures, the Parent will not take any steps to redeem the
First Preferred Shares by issuing First Units, or to redeem the Second
Preferred Shares by issuing Second Units. The Parent, the Borrower, the
Creditors, the Administrative Agent, the Collateral Agent and the Fondé de
Pouvoir acknowledge and agree that, notwithstanding the foregoing provisions of
this Section 4.20, the provisions of this Agreement will nevertheless be
effective and binding upon such parties, and that the First Units Trustee and
the Second Units Trustee may become parties to this Agreement by executing a
counterpart copy hereof, without the need for any further execution hereof by
any of the Parent, the Borrower, the Creditors, the Administrative Agent, the
Collateral Agent or the Fondé de Pouvoir.


[The balance of this page is intentionally left blank; signature pages follow.]



 






 





INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

S 1



          IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.




	 	 	 
	BORROWER	 	
PARENT
	 	 	 
	MICROCELL SOLUTIONS INC.	 	
MICROCELL TELECOMMUNICATIONS INC.
	 	 	 
	By:	 	
By:
	
	 	


	 	 	 
	By:	 	
By:
	
	 	





AGENTS


JPMORGAN CHASE BANK TORONTO

BRANCH, as Administrative Agent under the

Tranche A Exit Facility Agreement, the

Tranche B Credit Agreement and the Tranche

C Credit Agreement, and as Collateral Agent

and Fondé de Pouvoir



	 	 
	By:  	 
	 	

	 	 
	By:	 
	 	




TRUSTEES




	 	 	 
	COMPUTERSHARE TRUST COMPANY

OF CANADA, as Trustee for the holders of

the First Units	 	
COMPUTERSHARE TRUST COMPANY

OF CANADA, as Trustee for the holders of

the Second Units
	 	 	 
	By:	 	
By:
	
	 	





 






 



INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

S 2









	 	 	 
	By:	 	
By:
	
	 	






 






 



INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

S 3



	 	 	 
	TRANCHE A LENDERS	 	 
	 
	 	 	
Address: (Please complete)


	 
	


(Type or print name of Lender)	 	

Street Address:


	 	



	By:


	 	
City:


	Name:


	 	
Province/State:


	Title:

	 	
Postal/Zip Code:


	 	 	
Country:


	By:

	 	
Contact:


	Name:

	 	
Phone:


	Title:

	 	
Fax:


	 	 	
E-mail:


	 	 	
 



 






 



INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

S 4



	 	 	 
	TRANCHE B LENDERS	 	 
	 
	 	 	
Address: (Please complete)


	 
	


(Type or print name of Lender)	 	

Street Address:


	 	



	By:


	 	
City:


	Name:


	 	
Province/State:


	Title:

	 	
Postal/Zip Code:


	 	 	
Country:


	By:

	 	
Contact:


	Name:

	 	
Phone:


	Title:

	 	
Fax:


	 	 	
E-mail:


	 	 	
 



 






 



INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

S 5



	 	 	 
	TRANCHE C LENDERS	 	 
	 
	 	 	
Address: (Please complete)


	 
	


(Type or print name of Lender)	 	

Street Address:


	 	



	By:


	 	
City:


	Name:


	 	
Province/State:


	Title:

	 	
Postal/Zip Code:


	 	 	
Country:


	By:

	 	
Contact:


	Name:

	 	
Phone:


	Title:

	 	
Fax:


	 	 	
E-mail:


	 	 	
 



 






 



Schedule “A”





	1.     Inukshuk Internet Inc. and Telcom Investments Inc. are “Unrestricted
Subsidiaries” under the Tranche A Credit Agreement, the Tranche B Credit
Agreement and the Tranche C Credit Agreement and therefore are not “Credit
Parties”.
	 
	2.     Under federal Canadian law, a Lien cannot be granted in respect of the PCS
license held by the Borrower.
	 
	3.     The Collateral Agent has not made any real estate filings against any cell
sites or any retail locations.
	 
	4.    
The Collateral Agent has not made any real estate filings against any leased
premises to the extent that a consent of the relevant landlord is required
under the relevant lease, and such consent has not been provided to the
Collateral Agent (it being expressly acknowledged that the Collateral Agent is
under no duty to seek such consent).
	 
	5.     See
the other security qualifications in the opinion of counsel to the
Credit Parties delivered on the Effective Date.



 






 






TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	 	Page
	INTRODUCTORY STATEMENTS
	 	 	1	 
	ARTICLE 1
	 	 	 	 
	 	INTERPRETATION
	 	 	2	 
	 	1.1       Definitions
	 	 	2	 
	 	1.2       Other Usages
	 	 	9	 
	 	1.3       Plural and Singular
	 	 	10	 
	 	1.4       Headings
	 	 	10	 
	 	1.5       Governing Law
	 	 	10	 
	 	1.6       Time of the Essence
	 	 	10	 
	 	1.7       Paramountcy
	 	 	10	 
	 	1.8       No Rights Conferred on Borrower
	 	 	10	 
	 	1.9       Currency
	 	 	10	 
	ARTICLE 2
	 	 	 	 
	 	SUBORDINATIONS; PRO RATA SHARING; ACKNOWLEDGEMENTS
	 	 	10	 
	 	2.1       Subordinations; Application of Proceeds of Realization
	 	 	10	 
	 	2.2       Mandatory Prepayments
	 	 	12	 
	 	2.3       Asset Sales
	 	 	15	 
	 	2.4       Prohibited Payments
	 	 	16	 
	 	2.5       Permitted Payments
	 	 	16	 
	 	2.6       Consent of Creditors
	 	 	17	 
	 	2.7       Application of the Agreement
	 	 	17	 
	 	2.8       Payments Held in Trust
	 	 	17	 
	 	2.9       Pledged Shares
	 	 	18	 
	ARTICLE 3
	 	 	 	 
	 	ENFORCEMENT AND REMEDIES
	 	 	18	 
	 	3.1       Enforcement
	 	 	18	 
	 	3.2       Cooperation and Information
	 	 	18	 
	 	3.3       No Challenge
	 	 	19	 
	 	3.4       Notice
	 	 	19	 
	ARTICLE 4
	 	 	 	 
	 	THE COLLATERAL AGENT; MISCELLANEOUS
	 	 	19	 



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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	4.1	 	
Authorization of Collateral Agent
	 	 	19	 
	4.2	 	
Reliance on Writings and Legal Advice
	 	 	20	 
	4.3	 	
Costs and Expenses
	 	 	20	 
	4.4	 	
Authority of Collateral Agent to Act
	 	 	20	 
	4.5	 	
Disclaimer
	 	 	21	 
	4.6	 	
Indemnification
	 	 	21	 
	4.7	 	
Acknowledgement of Creditors
	 	 	21	 
	4.8	 	
Duty of Collateral Agent to Deliver Documents
	 	 	22	 
	4.9	 	
No Association among Creditors
	 	 	22	 
	4.10	 	
Successor Collateral Agent
	 	 	22	 
	4.11	 	
No Third Party Rights Established
	 	 	23	 
	4.12	 	
Waivers and Amendments
	 	 	23	 
	4.13	 	
Severability
	 	 	23	 
	4.14	 	
Successors and Assigns
	 	 	23	 
	4.15	 	
Counterparts; Binding Nature
	 	 	24	 
	4.16	 	
Further Assurances
	 	 	24	 
	4.17	 	
Communication
	 	 	24	 
	4.18	 	
Quebec Security
	 	 	24	 
	4.19	 	
Entire Agreement
	 	 	26	 




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