EXHIBIT 4.3
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "AGREEMENT") is made and entered into as of the 28th
day of the month of October, of one thousand nine hundred and ninety seven
(1997), by and between MARINE MIDLAND BANK, not in its individual capacity but
solely as collateral agent for the benefit of the holders of the Senior Notes
(hereinafter referred to as the "PLEDGEE") a banking corporation and trust
company domiciled in 000 Xxxxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx of
America, incorporated under the laws of the State of New York, United States of
America, on December 31, 1993, being represented in this act by Xxxxxx Xxxxxx,
of legal age, domiciled in the city of New York, in his capacity as (capacity
of the person executing the pledge) pursuant to the corporate by-laws of the
corporation; and, TRANSTEL S.A., (hereinafter referred to as the "PLEDGOR"), a
corporation domiciled in Cali, Colombia, incorporated on August 23, 1993,
through Public Deed No. 3097 issued by the Fourteenth Notary Public Office in
Cali, and registered before the Mercantile Registry of the Chamber of Commerce
of Cali on September 10, 1993 under number 69826, Volume IX, and Tax
Identification Number 800.206.541-0, being represented in this act by XXXXXXXXX
X. XXXXX XXXXXXXX, of legal age, domiciled in the city of Cali, identified with
citizen identification card number 16.614.481 issued in Cali, in his capacity
as manager and legal representative of the corporation pursuant to the
corporate by-laws of the corporation as evidenced in the certificate of
compliance which is attached hereto as an integral part of this AGREEMENT.
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WHEREAS, the PLEDGOR has entered into an Indenture, dated as of October 28,
1997, (as amended, modified or supplemented from time to time, the "Indenture"),
with Marine Midland Bank, as trustee (together with any successor thereto
pursuant to the terms of the Indenture, the "Trustee"), providing for the
issuance by the PLEDGOR of up to $180.000.000 principal amount of its 12.5k
Senior Notes due 2007 (as amended, modified or supplemented from time to time,
the "Senior Notes"), the holders from time to time of the Senior Notes being
hereinafter called the "Noteholders";
WHEREAS, the PLEDGOR has issued initially US$150.000.000 principal amount
of Senior Notes, under a private placement in the State of New York, United
States of America, the 28th day of the month of October, of one thousand nine
hundred and ninety seven (1997) (hereinafter referred to as the "Issue");
WHEREAS, the net proceeds of the Issue will be used by the PLEDGOR as
described in the final Offering Memorandum, dated October 21, l997, including
the making of intercompany loans to its Restricted Subsidiaries (as defined in
the Indenture);
WHEREAS, the PLEDGOR will grant to the PLEDGEE for the benefit of the
Noteholders, in order to secure the PLEDGOR's obligations under the Senior
Notes, a pledge of all of the Intercompany Notes (as defined in the Indenture
issued by its Restricted Subsidiaries to secure loans made by the PLEDGOR to
such Restricted Subsidiaries with the proceeds of the Senior Notes;
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WHEREAS, these Intercompany Notes evidence certain permitted Intercompany
Indebtedness of each Restricted Subsidiary:
WHEREAS, it is a condition precedent to the issuance of the Senior Notes
pursuant to the Indenture, that the PLEDGOR shall have executed and delivered to
the PLEDGEE this AGREEMENT;
WHEREAS, the PLEDGOR desires to execute this AGREEMENT to satisfy the
conditions described in the preceding paragraph;
THE PLEDGOR AND THE PLEDGEE; HEREBY AGREE; AS FOLLOWS:
All capitalized words not defined herein shall have the meaning assigned to
them in the Indenture.
CLAUSE ONE (1): The PLEDGOR in accordance with the Colombian Commercial
Code (articles 1200 to 1206) hereby constitute a Closed Pledge with Tenancy in
favor of THE PLEDGEE over all INTERCOMPANY NOTES at any time issued to the
PLEDGOR by its Restricted Subsidiaries, which INTERCOMPANY NOTES shall be in the
form of Exhibit A hereto.
Thus, the PLEDGOR assigns to the PLEDGEE the power to collect the same at
their maturity with the specific purpose that said sums secure the prompt
payment of any and all amounts owed under the Senior Notes including, without
limitation, principal, interest, default interest, taxes, commissions, and all
other expenses incurred by the PLEDGEE (including attorneys fees in the event of
a judicial claim).
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The PLEDGEE is expressly and irrevocably authorized to apply any amounts that
it receives, to the payment o$ any obligations under the Senior Notes. However
if the amounts recovered under this Pledge are insufficient to pay the
obligations under the Senior Notes THE PLEDGOR shall be obligated to pay such
amounts as remain outstanding
CLAUSE TWO (2): This AGREEMENT shall secure the obligation consisting of
the full and prompt payment when due by the PLEDGOR of: (i) the principal amount
of the Senior Notes, payable on November 1, 2007, or in the event of a
redemption or acceleration or otherwise, each in accordance with the terms of
the Indenture, and (ii) the semi-annual payment of the interest accrued on the
Senior Notes at the rate of 12.5%, commencing on May 1, 1998. However, this
pledge shall be in effect for so long as there are any amounts outstanding under
the Senior Notes.
CLAUSE THREE (3): The signatories of this AGREEMENT agree that the
following shall constitute events of default under this AGREEMENT ( each such
event hereinafter referred to as an "Event of) Default"): (i) an Event of
Default (as defined in the Indenture) occurs under the Indenture and such Event
of Default is continuing, (ii) if in the opinion of the PLEDGEE, there is any
deterioration of the value of the Intercompany Notes given in pledge. and (iii)
if there shall be any material adverse change in the financial condition of the
PLEDGOR.
CLAUSE FOUR (4): Upon the occurrence of any Event of Default, the PLEDGEE
may exercise any and all of the following rights and remedies: (i) declare all
indebtedness secured hereby, or any part thereof, immediately due and
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payable without demand or notice and proceed to collect the same, this exercise
any or all of the rights, powers and remedies with respect to the Intercompany
Notes available under the Colombian Commercial Code or Civil Procedure Code,
(iii) receive directly all amounts payable in respect of the Intercompany Notes
to the PLEDGOR, (iv) transfer all or any part of the Intercompany Notes into the
PLEDGEE's name or the name of its nominee or nominees, and (v) accelerate any
Intercompany Note which may be accelerated in accordance with its terms, and
take any other action to collect upon any Intercompany Note (including without
limitation to make any demand for payment thereon).
CLAUSE FIVE (5): The PLEDGOR hereby represents and warrants to the PLEDGEE
that: (i) it is the legal owner of record and beneficial owner of, and has a
good and marketable title to, all Intercompany Notes pledged by it hereunder,
subject to no pledge, lien, mortgage, hypothecation or security interest, except
as created by this AGREEMENT; (ii) it has full power, authority, and legal right
to pledge all of the Intercompany Notes pledged by it pursuant to this
AGREEMENT, (iii) this AGREEMENT has been duly authorized, executed and delivered
by the PLEDGOR and constitutes a legal, binding obligation of the PLEDGOR
enforceable in accordance with its terms, (iv) no consent of any other party
(including without limitation, any stockholder or creditor of the PLEDGOR or any
of its Restricted Subsidiaries) and its consent, license, permit, approval, or
authorization of exemption by, notice or report to, or registration, filing or
declaration with any governmental authority is required to be obtained by the
PLEDGOR in connection with the execution, delivery or performance of this
AGREEMENT, (iv) the execution, delivery and performance of this AGREEMENT does
not violate any provision of
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any applicable law or regulation or of any order of any judge, arbitrator or
governmental authority, domestic or foreign, or of the by-laws of the PLEDGOR
or its Restricted Subsidiaries, or of any mortgage, indenture, lease, deed of
trust, loan agreement, credit agreement, or other material agreement,
instrument or undertaking to which the Pledgor or any of its Restricted
Subsidiaries is a party or which purports to be binding upon the PLEDGOR or any
of its Restricted Subsidiaries or upon any of their respective assets, and will
not result in the creation or impression of any lien or encumbrance on any of
the assets of the PLEDGOR or any of its Restricted Subsidiaries except as
contemplated by this AGREEMENT, each of the Intercompany Notes when executed by
the relevant Restricted Subsidiary thereof will be a legal valid and binding
obligation of such Restricted Subsidiary, and (vi) the pledge of the
Intercompany Notes to the PLEDGEE pursuant to this AGREEMENT, together with the
delivery of the Intercompany Notes to the PLEDGEE pursuant to this AGREEMENT,
creates a valid and perfected first priority security interest in such
Intercompany Notes and the proceeds thereof, subject to no prior lien or
encumbrance or to any agreement purporting to grant to any third party a lien
or encumbrance on the property or assets of the PLEDGOR which would include the
Intercompany Notes.
CLAUSE SIX (6): The PLEDGOR covenants and agrees that it will defend the
PLEDGEE's right, title, and security interest in and to the Intercompany Notes
and the proceeds thereof against the claims and demands of all persons
whomsoever.
CLAUSE SEVEN (7): when all the liabilities specified in CLAUSE TWO (2)
hereof shall have been paid in full, this AGREEMENT shall terminate, and the
PLEDGEE shall
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deliver to the PLEDGOR the pledged Intercompany Notes then held by it.
CLAUSE EIGHT (8): This AGREEMENT shall in a11 respects be construed in
accordance with and governed by the laws of the Republic of Colombia.
CLAUSE NINE (9): The PLEDGOR agrees that it will join with the PLEDGEE in
executing and, at the PLEDGOR's own expense, file such documents ae the PLEDGEE
may deem necessary or sand wherever required or permitted by law in order to
perfect and preserve the PLEDGEE's security interest in the Intercompany Notes,
and agrees to do such further acts and things and to execute and deliver to the
PLEDGEE such additional conveyances, assignments, agreements, and instruments as
the PLEDGEE may reasonably require or deem advisable to carry into effect the
purposes of this AGREEMENT or to further assure and confirm unto the PLEDGEE its
rights, powers and remedies hereunder.
IN WITNESS WHEREOF the parties hereto have executed this AGREEMENT THE DAY AND
YEAR FIRST ABOVE WRITTEN.
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TRANSTEL, S.A.,
/s/ XXXXXXXXX X. XXXXX XXXXXXXX
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XXXXXXXXX X. XXXXX XXXXXXXX
Legal Representative
MARINE MIDLAND BANK, as collateral
agent for the benefit of the holders
of the Senior Notes.
/s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
Vice President
