Exhibit 4.5
NOTE PLEDGE AGREEMENT
NOTE PLEDGE AGREEMENT, dated as of December 20, 1996 (this "Pledge
Agreement"), between TV Filme, Inc., a Delaware corporation (the "Company"), and
IBJ Xxxxxxxx Bank & Trust Company, as collateral agent (the "Trustee"), for the
holders ("Holders") of the Notes (as defined herein).
W I T N E S S E T H :
WHEREAS, the Company and IBJ Xxxxxxxx Bank & Trust Company, as
trustee, have entered into that certain indenture, dated as of December 20, 1996
(as amended, restated, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which the Company is issuing on the date hereof
$140,000,000 in aggregate principal amount of 12 7/8% Senior Notes due 2004
(together with the Exchange Notes (as defined in the Indenture), the "Notes");
WHEREAS, pursuant to the Indenture, the Company will on the date
hereof loan $140,000,000 to its subsidiary, ITSA - Intercontinental
Telecomunicacoes Ltda., a Brazilian corporation ("ITSA"), which loan will be
evidenced by the Note, dated the date hereof (the "Intercompany Note"), made by
ITSA to the order of the Company;
WHEREAS, the Company is the legal and beneficial owner of the
Intercompany Note; and
WHEREAS, to secure its obligations under the Indenture and the
Notes, the Pledgor has agreed to (i) pledge to the Trustee, and grant to the
Trustee, for its benefit and the ratable benefit of the Holders of Notes, a
security interest in, the Intercompany Note and (ii) execute and deliver this
Pledge Agreement in order to secure the payment and performance by the Pledgor
of all such obligations;
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Indenture
and used herein shall have the meanings given to them in the Indenture.
(b) As used herein, the following terms shall have the following
meanings:
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"Collateral Account" means any account established to hold money
Proceeds, maintained under the sole dominion and control of the Trustee,
subject to withdrawal by the Trustee for the account of the, collectively,
Holders only as provided in paragraph 12(c) hereof.
"Obligations" means, collectively, the unpaid principal of, premium,
if any, interest and Liquidated Damages, if any, on the Notes and all
other obligations and liabilities of the Company to the Holders
(including, without limitation, interest accruing at the then applicable
rate provided in the Notes and the Indenture after the maturity of the
Notes and interest accruing at the then applicable rate provided in the
Notes after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the
Company, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Notes, the
Indenture, the Registration Rights Agreement or any other document made,
delivered or given in connection therewith, whether on account of
principal, premium, interest, Liquidated Damages, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Trustee that are required to be paid by
the Company pursuant to the terms of the Indenture).
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, including, without limitation,
principal, interest and other income from the Note and all collections
thereon.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Pledge Agreement shall refer to this
Pledge Agreement as a whole and not to any particular provision of this
Pledge Agreement, and section and paragraph references are to this Pledge
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge and Grant of Security Interest.
The Company hereby delivers and pledges to the Trustee the
Intercompany Note, for its benefit and for the ratable benefit of the Holders of
Notes, and grants to the Trustee for its benefit and for the ratable benefit of
the Holders of Notes, a continuing first priority security interest in and to
(i) all of the Company's right, title and interest in the Intercompany Note,
(ii) the interest any holder of the Intercompany Note under any and all
documents and instruments that from time to time secure or guarantee payment of
the Intercompany Note, (iii) in any and all collateral, if any, from time to
time subject to any such documents or instruments and (iv) all Proceeds
(collectively, the "Collateral") as collateral security for the prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Obligations.
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3. Indorsement; Acknowledgement and Consent.
Concurrently with the delivery of the Intercompany Note to the
Trustee pursuant to Section 2 hereof:
(a) the Intercompany Note shall be indorsed by the Company as
follows:
"Pay to the order of Bearer
TV FILME, INC.
By:________________________
Name:"; and
(b) the Company shall deliver to the Trustee an Acknowledgment and
Consent, substantially in the form of Exhibit A hereto, duly executed by
ITSA.
4. Payments Under the Intercompany Note.
(a) Unless an Event of Default shall have occurred and be
continuing, the Company shall be permitted to receive all regularly
scheduled payments of principal and interest under the Intercompany Note,
as such payments become due. If an Event of Default shall occur and be
continuing, and the Trustee shall have given notice to the Company of the
Trustee's intent to exercise its rights pursuant to Section 7 hereof, all
payments of principal and interest under the Intercompany Note shall be
paid to the Trustee, which shall hold the same as Collateral hereunder. If
the Company shall receive any such payments, the Company shall hold the
same in trust for the Trustee and the Holders, segregated from other funds
of the Company, and deliver the same forthwith to the Trustee in the exact
form received, duly indorsed by the Company to the Trustee, if required.
(b) All Proceeds realized by the Company in connection with a
default under the Intercompany Note and acceleration of the maturity
thereof shall be paid to the Trustee, which shall hold such payments as
Collateral hereunder. If the Company shall receive any such payments, the
Company shall hold the same in trust for the Trustee and the Holders,
segregated from other funds of the Company, and deliver the same forthwith
to the Trustee in the exact form received, duly indorsed by the Company to
the Trustee, if required.
(c) All money Proceeds received by the Trustee hereunder shall be
held by the Trustee for the benefit of the Holders in a Collateral
Account. All Proceeds while held by the Trustee in a Collateral Account
(or by the Company in trust for the Trustee and the Holders) shall
continue to be held as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided in
paragraph 12(c).
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5. Representations and Warranties.
The Company hereby represents and warrants that:
(a) The execution, delivery and performance by the Company of this
Pledge Agreement does not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
formation of the Company or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or result in the
creation or imposition of any Lien on any assets of the Company, except
for the security interests granted under this Pledge Agreement.
(b) No financing statement covering the Collateral is on file in any
public office (other than the financing statements filed pursuant to this
Pledge Agreement).
(c) Upon the delivery to the Trustee of the Intercompany Note, the
pledge of the Collateral pursuant to this Pledge Agreement creates a valid
and perfected first priority security interest in and to the Collateral,
securing the payment of the Obligations for the benefit of the Trustee and
the ratable benefit of the Holders of Notes, enforceable as such against
all creditors of the Pledgor and any persons purporting to purchase any of
the Collateral from the Pledgor, other than as permitted by the Indenture,
except as such enforcement may be limited by (i) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditor's rights generally and (ii) general principles of
equity, regardless of whether considered in a proceeding of equity or at
law.
(d) No consent of any other person and no consent, authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the
pledge by the Pledgor of the Collateral pursuant to this Pledge Agreement
or for the execution, delivery or performance of this Pledge Agreement by
the Company and the Pledgor (except for any notices, filings and notations
necessary to perfect Liens on the Collateral) or (ii) for the exercise by
the Trustee of the rights provided for in this Pledge Agreement or the
remedies in respect of the Collateral pursuant to this Pledge Agreement
(except for the usual and customary types of notices, filings and
notations which may be required in connection with any foreclosure or
other sale or transfer of the Collateral).
(e) The Company is the legal and beneficial owner of, and has good
and marketable title to, the Intercompany Note, free of any and all Liens
or options in favor of, or claims of, any other Person, except the
security interest created by this Pledge Agreement and any nonconsensual
Permitted Lien which may arise by operation of law or statute, provided
that such Lien is junior in priority to that created under this Pledge
Agreement and is not being enforced in any respect against the Collateral.
(f) The Intercompany Note is the legal, valid and enforceable
obligation of ITSA, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent
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conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing. The Intercompany Note is not
subject to any right of counterclaim or offset whatsoever.
(g) There exists no default under the Intercompany Note. There
exists no security interest or guarantee (other than the Subsidiary
Guarantees) that secures or supports payment of the indebtedness evidenced
by the Intercompany Note.
6. Further Assurances.
The Company agrees to promptly take such actions and to execute and
deliver or cause to be executed and delivered, or use its best efforts to
procure, such stock or bond powers, proxies, assignments, instruments and such
other or different writings as the Trustee may reasonably request, all in form
and substance satisfactory to the Trustee, deliver any instruments to the
Trustee and take any other actions that are necessary or, in the reasonable
opinion of the Trustee, desirable, to perfect, continue the perfection of,
confirm and assure the first priority of the Trustee's security interest in the
Collateral, to protect the Collateral against the rights, claims or interests of
third persons, to otherwise effect the purpose of this Pledge Agreement.
7. Covenants.
The Company covenants and agrees with the Trustee and the Holders of
Notes from and after the date of this Pledge Agreement until the earlier to
occur of (i) payment in full in cash of all Obligations due and owing under the
Indenture and the Notes and (ii) the occurrence of Legal Defeasance or Covenant
Defeasance under the Indenture that:
(a) The Company will not assign, transfer, or encumber any of its
right, title or interest under, in or to the Collateral.
(b) The Company will not take or omit to take any action, the taking
or the omission of which would result in an alteration or impairment of
the Collateral or the security of this Agreement.
(c) The Company will not enter into any agreement amending or
supplementing the Collateral.
(d) The Company will not waive or release any obligation of any
party to the Collateral.
(e) The Company will not permit or accept any payment of interest
more than 30 days in advance of the scheduled due date of such payment or
permit or accept any prepayment of principal under the Intercompany Note
without the consent of the Trustee.
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(f) Unless directed otherwise by the Trustee, the Company will
exercise promptly and diligently each and every right which it may have
under the Collateral (except the right to release or cancel).
(g) The Company will not take or omit to take any action or suffer
or permit any action to be omitted or taken, the taking or omission of
which would result in any right of offset against sums payable under the
Collateral.
(h) The Company will give the Trustee copies of all notices
(including notices of default) given or received with respect to the
Collateral, promptly after giving or receiving such notices.
(i) The Company shall maintain the security interest created by this
Pledge Agreement as a first, perfected security interest and shall defend
such security interest against claims and demands of all Persons
whomsoever. At any time and from time to time, upon the written request of
the Trustee, and at the sole expense of the Company, the Company will
promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Trustee reasonably may
request for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note or other instrument, such note or
instrument shall be immediately delivered to the Trustee, duly indorsed in
a manner satisfactory to the Trustee, to be held as Collateral under this
Pledge Agreement.
(j) The Company shall pay, and save the Trustee and the Holders
harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other similar
taxes and any and all recording and filing fees which may be payable or
determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Pledge
Agreement.
8. Power of Attorney.
In addition to all of the powers granted to the Trustee pursuant to
Article 6 of the Indenture, the Company hereby appoints and constitutes the
Trustee as the Company's attorney-in-fact to exercise to the fullest extent
permitted by law all of the following powers upon and at any time after the
occurrence and during the continuance of an Event of Default: (i) collection of
proceeds of any Collateral; (ii) conveyance of any item of Collateral to any
purchaser thereof; (iii) giving of any notices or recording of any Liens under
Section 6 hereof; (iv) making of any payments or taking any acts under Section 9
hereof and (v) paying or discharging taxes or Liens levied or placed upon the
Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by the Trustee in its reasonable discretion,
and such payments made by the Trustee to become the Obligations of the Company
to the Trustee, due and payable immediately upon demand. The Trustee's authority
hereunder shall include, without limitation, the authority to endorse and
negotiate
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any checks or instruments representing proceeds of Collateral in the name of the
Company, execute and give receipt for any certificate of ownership or any
document constituting Collateral, transfer title to any item of Collateral, sign
the Company's or the Company's name on all financing statements (to the extent
permitted by applicable law) or any other documents reasonably deemed necessary
or appropriate by the Trustee to preserve, process or perfect the security
interest in the Collateral and to file the same, prepare, file and sign the
Company's name on any notice of Lien, and to take any other actions arising from
or incident to the powers granted to the Trustee in this Pledge Agreement. This
power of attorney is coupled with an interest and is irrevocable by the Company.
9. Trustee May Perform.
If the Company fails to perform any agreement contained herein, the
Trustee may itself perform, or cause performance of, such agreement, and the
reasonable expenses of the Trustee incurred in connection therewith shall be
payable by the Company under Section 13 hereof.
10. No Assumption of Duties; Reasonable Care.
The rights and powers granted to the Trustee hereunder are being
granted in order to preserve and protect the Trustee's and the Holders' of Notes
security interest in and to the Collateral granted hereby and shall not be
interpreted to, and shall not, impose any duties on the Trustee in connection
therewith other than those imposed under applicable law.
11. Indemnity.
The Company shall indemnify, defend and hold harmless the Trustee
and its directors, officers, agents and employees from and against all claims,
actions, obligations, losses, liabilities and expenses, including costs, fees
and disbursements of counsel (including, without limitation, the reasonable cost
to the Trustee of legal counsel), the costs of investigations, and claims for
damages, arising from or in connection with the Trustee's performance or duties
under this Pledge Agreement (other than such claims, actions, obligations,
losses, liabilities and expenses which result from the gross negligence or
willful misconduct of the Trustee or any such other Person).
12. Remedies Upon Event of Default.
If an Event of Default shall have occurred:
(a) The Trustee shall have and may exercise with reference to the
Collateral any or all of the rights and remedies of a secured party under
the Uniform Commercial Code in effect in the State of New York (the
"UCC"), and as otherwise granted herein or under any other applicable law
or under any other agreement now or hereafter in effect executed by the
Company, including, without limitation, the right and power to sell, at
public or private sale or sales, or otherwise dispose of, or otherwise
utilize the Collateral and any part or parts thereof in any manner
authorized or permitted under
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said UCC after default by a debtor, and to apply the proceeds thereof
toward payment of any costs and expenses and attorneys' fees and expenses
thereby incurred by the Trustee and toward payment of the Obligations in
such order or manner as the Trustee may elect. Specifically and without
limiting the foregoing, the Trustee shall have the right to take
possession of all or any part of the Collateral or any security therefor
and of all books, records, papers and documents of the Company or in the
Company's possession or control relating to the Collateral which are not
already in the Trustee's possession, and for such purpose may enter upon
any premises upon which any of the Collateral or any security therefor or
any of said books, records, papers and documents are situated and remove
the same therefrom without any liability for trespass or damages thereby
occasioned. To the extent permitted by law, the Company expressly waives
any notice of sale or other disposition of the Collateral and all other
rights or remedies of the Company or formalities prescribed by law
relative to sale or disposition of the Collateral or exercise of any other
right or remedy of the Trustee existing after default hereunder; and to
the extent any such notice is required and cannot be waived, each of the
Company and the Pledgor agrees that if such notice is given in the manner
provided in Section 17 hereof at least five (5) days before the time of
the sale or disposition, such notice shall be deemed reasonable and shall
fully satisfy any requirement for giving of said notice. The Trustee shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Trustee may adjourn any public or private
sale. The Company further agrees to use its best efforts to do or cause to
be done all such other acts as may be necessary.
(b) All rights to marshalling of assets of the Company, including
any such right with respect to the Collateral, are hereby waived by the
Company.
(c) If an Event of Default shall have occurred and be continuing, at
any time at the Trustee's election, the Trustee may apply all or any part
of Proceeds held in any Collateral Account in payment of the Obligations
in such order as the Trustee may elect.
13. Expenses.
The Company agrees upon demand (i) to pay or reimburse the Trustee
for all of its reasonable out-of-pocket costs and reasonable expenses
(including, without limitation, the reasonable fees, expenses and disbursements
of counsel, experts and agents retained by the Trustee) that the Trustee may
incur in connection with (A) the administration of this Pledge Agreement and (B)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral and (ii) to pay or reimburse the Trustee
for all of its out-of-pocket costs and expenses (including, without limitation,
the fees, expenses and disbursements of counsel, experts and agents retained by
the Trustee) that the Trustee may incur in connection with (A) the exercise or
enforcement of any of the rights of the Trustee and the Holders of Notes
hereunder or (B) the failure by the Company to perform or observe any of the
provisions hereof.
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14. Security Interest Absolute.
All rights of the Trustee and the Holders of Notes and security
interests hereunder, and all obligations of the Company hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any Liens
on any other collateral for all or any of the Obligations; or
(d) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Company in respect of the Obligations or of this Pledge
Agreement.
15. Continuing Security Interest; Termination.
(a) This Pledge Agreement shall create a continuing security
interest in and to the Collateral and shall, unless otherwise provided in
the Indenture or in this Pledge Agreement, remain in full force and effect
until the earlier to occur of (i) payment in full in cash of all
Obligations due and owing under the Indenture and the Notes and (ii) the
occurrence of Legal Defeasance or Covenant Defeasance under the Indenture.
This Pledge Agreement shall be binding upon the Company, their respective
successors and assigns, and shall inure, together with the rights and
remedies of the Trustee hereunder, to the benefit of the Trustee, the
Holders of Notes and their respective successors, transferees and assigns.
(b) This Pledge Agreement shall terminate upon the earlier to occur
of (i) the payment in full in cash of all Obligations due and owing under
the Indenture and the Notes and (ii) the occurrence of Legal Defeasance or
Covenant Defeasance under the Indenture. At such time, the Trustee shall,
at the written request of the Company, reassign and redeliver to the
Company all of the Collateral hereunder that has not been sold, disposed
of, retained or applied by the Trustee in accordance with the terms of
this Pledge Agreement and the Indenture. Such reassignment and redelivery
shall be without warranty (either express or implied) by or recourse to
the Trustee, except as to the absence of any prior assignments by the
Trustee of its interest in the Collateral, and shall be at the expense of
the Company.
(c) Notwithstanding any provision in this Pledge Agreement, if any
of the events described in Section 8.8 of the Indenture occurs, the
Company shall use its best
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efforts to immediately cause the Trustee, for its benefit and for the
ratable benefit of the Holders of Notes, to have a perfected first
priority security interest in the Collateral. This paragraph shall survive
the termination of this Pledge Agreement.
16. Authority of the Trustee.
(a) The Trustee shall have and be entitled to exercise all powers
hereunder that are specifically granted to the Trustee by the terms
hereof, together with such powers as are reasonably incident thereto. The
Trustee may perform any of its duties hereunder or in connection with the
Collateral by or through agents or employees and shall be entitled to
retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Neither the Trustee, any director, officer,
employee, attorney or agent of the Trustee nor the Holders of Notes shall
be liable to the Company for any action taken or omitted to be taken by it
or them hereunder, except for its or their own bad faith, gross negligence
or willful misconduct, nor shall the Trustee be responsible for the
validity, effectiveness or sufficiency hereof, or of any document or
security furnished pursuant hereto. The Trustee and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document believed by it or them to be genuine
and correct and to have been signed or sent by the proper person or
persons.
(b) The Company acknowledges that the rights and responsibilities of
the Trustee under this Pledge Agreement with respect to any action taken
by the Trustee or the exercise or non-exercise by the Trustee of any
option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Pledge Agreement shall, as
between the Trustee and the Holders of Notes, be governed by the Indenture
and by such other agreements with respect thereto as may exist from time
to time among them, but, as between the Trustee and the Company, the
Trustee shall be conclusively presumed to be acting as agent for the
Holders of Notes with full and valid authority so to act or refrain from
acting, and the Company shall not be obligated or entitled to make any
inquiry respecting such authority.
17. Notices.
Any communication, notice or demand to be given hereunder shall be
duly given hereunder if given in the form and manner, and delivered to their
address set forth in the Indenture, or in such other form and manner or to such
other address as shall be designated by any party hereto to each other party
hereto in a written notice delivered in accordance with the terms of the
Indenture.
18. No Waiver; Cumulative Rights.
No failure on the part of the Trustee to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Trustee of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power. Each and every right, remedy and
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power hereby granted to the Trustee or allowed it by law or other agreement
shall be cumulative and not exclusive the one of any other, and may be exercised
by the Trustee from time to time.
19. Benefits of Pledge Agreement.
Nothing in this Pledge Agreement, express or implied shall give to
any person, other than the parties hereto and their successors hereunder, and
the Holders of the Notes, any benefit or any legal or equitable right, remedy or
claim under this Pledge Agreement.
20. Submission to Jurisdiction; Appointment of Agent for Service;
Currency Indemnity.
(a) To the fullest extent permitted by applicable law, the Company
irrevocably submits to the jurisdiction of any Federal or State court in
the City, County and State of New York, United States of America, in any
suit or proceeding based on or arising under this Pledge Agreement (solely
in connection with any such suit or proceeding), and irrevocably agrees
that all claims in respect of such suit or proceeding may be determined in
any such court. The Company irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The
Company hereby irrevocably designates and appoints Corporation Service
Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (the "Process
Agent"), as the authorized agent of the Company upon whom process may be
served in any such suit or proceeding, it being understood that the
designation and appointment of Corporation Service Company as such
authorized agent shall become effective immediately without any further
action on the part of the Company. The Company represents to the Holders
that it has notified the Process Agent of such designation and appointment
and that the Process Agent has accepted the same in writing. The Company
hereby irrevocably authorizes and directs the Process Agent to accept such
service. The Company further agrees that service of process upon the
Process Agent and written notice of said service to the Company mailed by
prepaid registered first class mail or delivered to the Process Agent at
its principal office, shall be deemed in every respect effective service
of process upon the Company in any such suit or proceeding. Nothing herein
shall affect the right of any Holder or any person controlling such Holder
to serve process in any other manner permitted by law. The Company further
agrees to take any and all action, including the execution and filing of
any and all such documents and instruments as may be necessary to continue
such designation and appointment of the Process Agent in full force and
effect so long as the Company has any outstanding obligations under this
Pledge Agreement. To the extent that the Company has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of note, attachment prior to judgment,
attachment in aid of execution, executor or otherwise) with respect to
itself or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Pledge Agreement, to the
extent permitted by law.
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(b) The obligation of the parties to make payments hereunder is in
U.S. dollars (the "Obligation Currency") and such obligation shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation
Currency or any other realization in such other currency, whether as
proceeds of set-off, security, guarantee, distributions, or otherwise,
except to the extent to which such tender, recovery or realization shall
result in the effective receipt by the party which is to receive such
payment of the full amount of the Obligation Currency expressed to be
payable hereunder, and the party liable to make such payment agrees to
indemnify the party which is to receive such payment (as an additional,
separate and independent cause of action) for the amount (if any) by which
such effective receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and such obligation
to indemnify shall not be affected by judgment being obtained for any
other sums due under this Pledge Agreement.
21. Governing Law.
THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
22. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WHICH IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH OR IS IN ANY WAY RELATED
TO THIS PLEDGE AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
23. Execution in Counterparts.
This Pledge Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
24. No Personal Liability of Directors, Officers, Employees and
Others.
No past, present or future director, officer, employee,
incorporator, partner or stockholder of the Company will have any liability for
any obligations of the Company under this Pledge Agreement or for any claim
based on, in respect of or by reason of such obligations or their creation.
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IN WITNESS WHEREOF, the parties have caused his Pledge Agreement to
be duly executed as of the date first above written.
TV FILME, INC.
By /s/ Hermano Studart Lins de Albuquerque
------------------------------------------
Name: Hermano Studart Lins de Albuquerque
Title: Chief Executive Officer
IBJ XXXXXXXX BANK & TRUST COMPANY
By /s/ Xxx Xxxxxx
------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
WITNESSES:
By /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared Hermano Studart Lins de
Albuquerque to me personally known who being duly sworn, did say that he is
Vice President of TV Filme, Inc., one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be the
free act and deed of said corporation.
/s/ Xxxxxx Xxxxxx
----------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 20th day of December, 1996, before me, a notary public
within and for said county, personally appeared Xxx Xxxxxx to me personally
known who being duly sworn, did say that he is Vice President of IBJ Xxxxxxxx
Bank & Trust Company, one of the persons described in and which executed the
foregoing instrument, and acknowledges said instrument to be the free act and
deed of said corporation.
/s/ Xxxx X. Xxxxxxxx
--------------------------
[NOTARIAL SEAL] Notary Public
EXHIBIT A
to Note Pledge Agreement
December 20, 1996
TO: ITSA - Intercontinental Telecomunicacoes Ltda.,
Reference is hereby made to the Note, dated December 20, 1996 (the
"Intercompany Note"), between you and TV Filme, Inc. (the "Company") in the
original principal amount of $140,000,000. By Note Pledge Agreement, dated as of
December 20, 1996 (the "Pledge Agreement"), the Company has pledged the
Intercompany Note and all collateral security therefor and all guarantees
thereof to IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Trustee") for the
Holders of Notes referred to in the Pledge Agreement, to secure payment and
performance of obligations of the Company to the Trustee and such Holders.
You are hereby irrevocably directed, upon receipt of notice from the
Trustee that an Event of Default has occurred and is continuing under the
Indenture as defined in the Pledge Agreement, to make any and all payments
becoming due under the Intercompany Note directly to the Trustee, without
set-off or counterclaim, as provided in the Intercompany Note at the Trustee's
office located at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The instructions contained herein are irrevocable and may not be amended,
revoked or otherwise modified without the prior written consent of the Trustee.
TV FILME, INC. IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee
By:_______________________________ By:___________________________________
Name: Name:
Title: Title:
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge
Agreement described in the foregoing letter and agrees for the benefit of the
Trustee and the Holders to be bound by the terms of the Pledge Agreement and to
comply with the terms of the foregoing letter. To the best knowledge of the
undersigned, no representation or warranty of the Company in the Pledge
Agreement is incomplete or incorrect.
ITSA - INTERCONTINENTAL
TELECOMUNICACOES LTDA.
By:____________________________
Name:
Title:
