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EXHIBIT K
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated as of September 12, 2001 made by Alfa Telecom
Limited, a company incorporated in the British Virgin Islands with an office at
X.X. Xxx 0000, Xxxxxx Xxxxx, 0xx Xxxxx, #333 Waterfront Drive, Road Town,
Tortola, British Virgin Islands (the "Pledgor"), to OAO Alfa-Bank, an open joint
stock company organized and existing under the laws of the Russian Federation
(the "Pledgee").
PRELIMINARY STATEMENTS:
(1) The Pledgee has entered into and intends in the future to
enter into loan agreements (collectively, the "Loan Agreements") with each of
its affiliates identified on Schedule 1 hereto (collectively, the "Affiliates")
pursuant to which the Pledgee has made and intends to make loans to each of such
Affiliates from time to time.
(2) The Pledgor owns a certain number of shares of common stock,
par value $0.01 per share, of Golden Telecom, Inc., a Delaware corporation, and
has agreed to pledge 10,450,987 of such shares (the "Pledged Shares") to the
Pledgee to secure the obligations of the Affiliates under the Loan Agreements
and any and all future debt arising between the Pledgee and the Affiliates.
(3) The Pledgor, the Pledgee and the Affiliates are affiliates
within the Alfa Group of companies, and Pledgor desires to pledge the Pledged
Shares for the benefit of the Alfa Group.
(4) It is a condition precedent to the closing of the
transactions contemplated by the Loan Agreements that the Pledgor shall have
agreed to the pledge of the Pledged Shares contemplated by this Agreement.
STATEMENT OF AGREEMENT:
NOW, THEREFORE, in consideration of the premises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Pledgor hereby agrees with the Pledgee for its
benefit as follows:
SECTION 1. Grant of Security. The Pledgor hereby assigns and
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pledges to the Pledgee for its benefit, and hereby grants to the Pledgee for its
benefit a security interest in, the following (collectively, the "Collateral"):
(a) the Pledged Shares and the certificate(s)
representing the Pledged Shares, and all instruments, cash and other property
from time to time received, receivable or otherwise distributed in exchange for
any or all of the Pledged Shares (the "Security Collateral"); and
(b) all proceeds of any and all of the foregoing
Collateral (including,without limitation, proceeds that constitute property of
the types described in Section 1(a)).
SECTION 2. Security for Obligations. This Agreement secures the
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payment of the obligations of the Affiliates, jointly and severally, now or
hereafter existing under the Loan Agreements and any future Loan Agreements
between the Pledgee and the Affiliates, whether for principal, interest, fees,
expenses or otherwise (all such obligations being the "Secured Obligations").
Without limiting the generality of the foregoing, this Agreement secures the
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payment of all amounts that constitute part of the Secured Obligations and would
be owed by the Affiliates to the Pledgee under the Loan Agreements but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Affiliates.
Should the Affiliates fail to timely perform their respective Secured
Obligations, the Pledgee shall have the right to sell all or any part of the
Collateral to any third person at its discretion and apply the proceeds towards
the settlement of the overdue Secured Obligations in the order of their
maturity.
SECTION 3. Delivery of Security Collateral. All certificates or
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instruments representing or evidencing the Security Collateral shall be
delivered to and held by or on behalf of the Pledgee pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Pledgee.
SECTION 4. Representations and Warranties. The Pledgor represents
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and warrants as follows:
(a) The chief place of business and chief executive office
of the Pledgor and the office where the Pledgor keeps its records concerning the
Collateral are located at the address first specified above for the Pledgor.
(b) The Pledgor is the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance except for the security interest created by this Agreement and
the Shareholders Agreement dated as of May 11, 2001 by and among Golden Telecom,
Inc., Global TeleSystems Europe Holdings B.V., the Pledgor, and the other
parties thereto (the "Shareholders Agreement").
(c) This Agreement and the pledge of the Security Collateral
pursuant hereto create a valid security interest in the Collateral securing the
payment of the Secured Obligations and all actions necessary or desirable to
perfect such security interest have been duly taken.
SECTION 5. Further Assurances. (a) The Pledgor agrees that from
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time to time, at the expense of the Pledgee, it will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Pledgee may reasonably request, in
order to perfect and protect any pledge, assignment or security interest granted
or purported to be granted hereby or to enable the Pledgee to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
(b) The Pledgor hereby authorizes the Pledgee to file one or
more financing, continuation statements or similar documents required by
applicable law and amendments thereto, relating to all or any part of the
Collateral without the signature of the Pledgor where permitted by law.
(c) The Pledgor will furnish to the Pledgee from time to
time statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Pledgee may
reasonably request, all in reasonable detail.
SECTION 6. Records. The Pledgor shall keep its chief place of
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business and chief executive office and the office where it keeps its records
concerning the Collateral, at the location therefor specified in Section 4(a).
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SECTION 7. Voting Rights; Etc. (a) So long as no event of default
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under any of the Loan Agreements (each such event being an "Event of Default"),
shall have occurred and be continuing:
(i) the Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security Collateral or any
part thereof for any purpose not inconsistent with the terms of this Agreement,
and Pledgor shall be entitled to receive any dividends declared and paid with
respect to the Pledged Shares.
(ii) the Pledgee shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights that it is entitled to exercise pursuant to
Section 7(a)(i).
(b) Upon notice to the Pledgor by the Pledgee following the
occurrence and during the continuance of an Event of Default, all rights of the
Pledgor to exercise the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) shall cease, and
all such rights shall thereupon become vested in the Pledgee, which shall
thereupon have the sole right to exercise or refrain from exercising such voting
and other consensual rights.
SECTION 8. Transfers and Other Liens. The Pledgor shall not (i)
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sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Collateral, or (ii) create or
suffer to exist any Lien upon or with respect to any of the Collateral except
for the pledge, assignment and security interest created by this Agreement and
the Shareholders Agreement.
SECTION 9. Pledgee Appointed Attorney-in-Fact. The Pledgor hereby
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irrevocably appoints the Pledgee the Pledgor's attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Pledgee's discretion, to take any action
and to execute any instrument that the Pledgee may deem necessary or advisable
following the occurrence and during the continuance of an Event of Default to
accomplish the purposes of this Agreement, including, without limitation:
(a) to ask for, demand, collect, xxx for, recover,
compromise, receive and give acquittance and receipts for moneys due and to
become due under or in respect of any of the Collateral,
(b) to receive, indorse and collect any drafts or other
instruments and documents in connection with Section 9(a), and
(c) to file any claims or take any action or institute any
proceedings that the Pledgee may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of the Pledgee with
respect to any of the Collateral.
SECTION 10. Pledgee May Perform. If the Pledgor fails to perform
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any agreement contained herein, the Pledgee may itself perform, or cause
performance of, such agreement, and the expenses of the Pledgee incurred in
connection therewith shall be payable by the Pledgor.
SECTION 11. The Pledgee's Duties. The powers conferred on the
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Pledgee hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Pledgee shall have no duty as to any
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Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Security Collateral, whether or not the Pledgee has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral. The Pledgee shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which the Pledgee accords its
own property.
SECTION 12. Remedies. If any Event of Default shall have occurred
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and be continuing:
(a) The Pledgee may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party upon default under the laws of
the British Virgin Islands and the Uniform Commercial Code in effect in the
State of New York at such time (the "N.Y. Uniform Commercial Code") (whether or
not the N.Y. Uniform Commercial Code applies to the affected Collateral).
(c) All cash proceeds received by the Pledgee in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Pledgee, be held by the Pledgee as collateral for,
and/or then or at any time thereafter applied in whole or in part by the Pledgee
for the ratable benefit of the Pledgor against, all or any part of the Secured
Obligations in such order as the Pledgee shall elect. Any surplus of such cash
or cash proceeds held by the Pledgee and remaining after payment in full of all
the Secured Obligations shall be paid over to the Pledgor or to whomsoever may
be lawfully entitled to receive such surplus.
SECTION 13. Amendments; Waivers; Etc. No amendment or waiver of
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any provision of this Agreement, and no consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Pledgee, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. No
failure on the part of the Pledgee to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
SECTION 14. Restricted Securities. Pledgee understands that the
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Pledged Shares have not been registered under the Securities Act of 1933, as
amended. Pledgee understands that the Pledged Shares are "restricted securities"
under applicable U.S. federal and state securities laws and that, pursuant to
these laws, in the event Pledgee forecloses on any of the Pledged Shares,
Pledgee must hold such shares indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
Pledgee further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, time and manner of sale restrictions, a holding
period for the Pledged Shares, and on requirements relating to the issuer of the
Pledged Shares which are outside of Pledgee's control, and which the Pledgor is
under no obligation to satisfy.
SECTION 15. Continuing Security Interest; Assignments. This
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Agreement shall create a continuing security interest in the Collateral and
shall (a) remain in full force and effect until the payment in full in cash of
the Secured Obligations, (b) be binding upon the Pledgor, its successors and
assigns and (c) inure, together with the rights and remedies of the Pledgee
hereunder, to the benefit of the Pledgee and its successors, transferees and
assigns.
SECTION 16. Termination. Upon the payment in full in cash of the
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Secured Obligations, the pledge, assignment and security interest granted hereby
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shall terminate and all rights to the Collateral shall revert to the Pledgor.
Upon any such termination, the Pledgee will, at the Pledgor's expense, return
the certificate(s) representing the Pledged Shares to the Pledgor and execute
and deliver to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
SECTION 17. Governing Law; Terms. This Agreement shall be
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governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any particular Collateral are
governed by the laws of a jurisdiction other than the State of New York. Unless
otherwise defined herein or in the Loan Agreements, terms used in Article 9 of
the N.Y. Uniform Commercial Code are used herein as therein defined.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be duly executed and delivered by its respective officer thereunto
duly authorized as of the date first above written.
ALFA TELECOM LIMITED
By:/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Director
OAO ALFA-BANK
By: /s/ Xxxxxxx Vid
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Name: Xxxxxxx Vid
Title: Chairman of the Board
