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EXHIBIT 10(a)(vii)
AMENDMENT TO FINANCE AND SECURITY AGREEMENT
This Amendment to Finance and Security Agreement ("Amendment") is made by and
between among SNAPPER, INC., a Georgia corporation ("Snapper"), and DEUTSCHE
FINANCIAL SERVICES CORPORATION (f/k/a ITT Commercial Finance Corp.), a Nevada
corporation ("DFS")
WHEREAS, DFS and Metromedia International Group, Inc. (f/k/a The
Actava Group Inc. and f/k/a Xxxxx Industries, Inc.) ("Metromedia") entered into
that certain Finance and Security Agreement dated October 23, 1992, as amended
from time to time thereafter ("Agreement");
WHEREAS, Metromedia has transferred and assigned all of the properties
and assets of Metromedia's Snapper Division to its wholly owned subsidiary,
Snapper, and Snapper has assumed all of the liabilities and obligations of
Metromedia's Snapper Division after consummation of the merger ("Merger")
contemplated under the Amended and Restated Agreement and Plan of Merger dated
as of September 27, 1995, by and among Actava, Orion Pictures Corporation, MCEG
Sterling Incorporated, Metromedia International Telecommunications, Inc., OPC
Merger Corp., and MITI Merger Corp.;
WHEREAS, Snapper desires to acknowledge its assumption of the
Obligations under the Agreement;
WHEREAS, Snapper and DFS desire to amend the Agreement as provided
herein.
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Snapper and DFS agree as follows:
1. DEFINITIONS. The following definitions as set forth in Section
2 of the Agreement are deleted and amended to read as follows (definitions not
set forth below are not affected by this Amendment and new definitions not
otherwise previously included in the Agreement are incorporated therein by this
Amendment):
"ELIGIBLE INVENTORY. The term "Eligible Inventory" shall mean
Inventory, other than parts, less any amount reserved on Snapper's or a Snapper
Subsidiary's books for surplus or obsolescence, consisting of factory whole
goods or engines held for sale by Snapper or such Snapper Subsidiary that meet
all of the following specifications:
Documents. If it is represented or covered by documents of
title, Snapper or such Snapper Subsidiary is the owner of the
documents free of all tax liens and other liens, encumbrances
and security interests except the Excepted Liens.
Location. It is stored at such locations in the United States
of which Snapper or such Snapper Subsidiary has given DFS
notice and to which DFS has consented, and is in the
possession or control of Snapper or such Snapper Subsidiary.
If it is located on leased premises, DFS has received a
landlord's waiver of rights with
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respect to such Inventory. If it is held by a bailee,
warehouseman or similar party, DFS shall have received from
such bailee, warehouseman or similar party such
acknowledgments of DFS' lien, warehouse receipts or other
agreements, each in form and substance acceptable to DFS, as
DFS may require in its reasonable discretion. If it is held by
a consignee: (a) DFS shall have received a copy of a
consignment agreement in form and substance reasonably
satisfactory to DFS, (b) Snapper shall have filed all
necessary or appropriate UCC consignment financing statements
in form and substance reasonably satisfactory to DFS as
reasonably requested by DFS, (c) Snapper shall have sent to
the consignee's prior filed secured parties a consignment
notification letter in form and substance reasonably
satisfactory to DFS, (d) the prior filed secured parties of
the consignee shall have subordinated their security interest
in the consigned inventory and all proceeds thereof in favor
of Snapper, DFS and Chemical Bank, in form and substance
reasonably satisfactory to DFS, (e) consignee and consignee's
landlord shall have executed a waiver of landlord's lien in
form and substance reasonably satisfactory to DFS and
subordinating such lien in favor of Snapper, DFS and Chemical
Bank, (f) DFS shall have filed UCC financing statements
against Snapper in the jurisdiction where such consigned
inventory is located, and (g) and prior filed secured
creditors of Snapper shall have subordinated their security
interest in the consigned inventory in favor of DFS.
Miscellaneous. It is new and unused, and it has not, in DFS'
good faith judgment, been materially reduced in market value
by reason of age, obsolescence, surplus or other factors.
Ownership. It is owned by Snapper or such Snapper Subsidiary,
free of all tax liens and other liens, encumbrances and
security interests except the Excepted Liens, and DFS has a
perfected first security interest therein.
Other Financing. No financing statement is on file covering
such item or the products or proceeds thereof except for DFS'
financing statement.
WIP. It is not work-in-process.
ELIGIBLE PARTS. The term "Eligible Parts" shall mean parts
sold by Snapper as replacement parts for its finished Inventory and
accessories, less any amount reserved on Snapper's books for surplus or
obsolescence, and that meet all the following specifications:
Documents. If it is represented or covered by documents of
title, Snapper is the owner of the documents free of all tax
liens and other liens, encumbrances and security interests
except the Excepted Liens.
Location. It is stored at such locations in the United States
of which Snapper has given DFS notice and to which DFS has
consented, and is in the possession or control of Snapper. If
it is located on leased premises, DFS has received a
landlord's waiver of rights with respect to such Inventory. If
it is held by a bailee, warehouseman or similar party, DFS
shall have received from such bailee,
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warehouseman or similar party such acknowledgments of DFS'
lien, warehouse receipts or other agreements, each in form and
substance acceptable to DFS, as DFS may require in its
reasonable discretion. If it is held by a consignee: (a) DFS
shall have received a copy of a consignment agreement in form
and substance reasonably satisfactory to DFS, (b) Snapper
shall have filed all necessary or appropriate UCC consignment
financing statements in form and substance reasonably
satisfactory to DFS as reasonably requested by DFS, (c)
Snapper shall have sent to the consignee's prior filed secured
parties a consignment notification letter in form and
substance reasonably satisfactory to DFS, (d) the prior filed
secured parties of the consignee shall have subordinated their
security interest in the consigned inventory and proceeds
thereof in favor of Snapper, DFS and Chemical Bank, in form
and substance reasonably satisfactory to DFS, (e) consignee
and consignee's landlord shall have executed a waiver of
landlord's lien in form and substance reasonably satisfactory
to DFS and subordinating such lien in favor of Snapper, DFS
and Chemical Bank, (f) DFS shall have filed UCC financing
statements against Snapper in the jurisdiction where such
consigned inventory is located, and (g) and prior filed
secured creditors of Snapper shall have subordinated their
security interest in the consigned inventory in favor of DFS.
Miscellaneous. It is new and unused, and it has not, in DFS'
good faith judgment, been materially reduced in market value
by reason of age, obsolescence, surplus or other factors.
Ownership. It is owned by Snapper, free of all tax liens and
other liens, encumbrances and security interests except the
Excepted Liens, and DFS has a perfected first security
interest therein.
Other Financing. No financing statement is on file covering
such item or the products or proceeds thereof except for DFS'
financing statement.
WIP. It is not work-in-process.
MATURITY DATE. The term "Maturity Date" shall mean November 1,
1996."
2. LOAN TERMS. Sections 3.1, 3.2, 3.3(c), 3.3(d) and 3.7 of the
Agreement are deleted and restated in their entirety as follows (Sections
3.3(a) and (b), 3.4, 3.5 and 3.6 being retained and reaffirmed):
"3.1 Total Outstandinqs. Unless DFS shall, in its sole
discretion, elect to provide such additional funding, in no
event shall Total Outstandings at any time exceed
$45,000,000."
"3.2 Inventory Loans.
(a) Inventory Line of Credit. DFS agrees to lend to Snapper on
a revolving basis from the Effective Date until the Maturity
Date such sums as Snapper may from time to time request
("Inventory Loans"), not to exceed at any time the lesser of
(i) $25,000,000, (ii) the sum of (1) 65% of Snapper's Eligible
Inventory and (2) 40% of
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Snapper's Eligible Parts, in each case measured at cost or
market value, whichever is lower, as determined on a
"first-in, first-out" basis; provided, however, that the
aggregate principal outstanding balance advanced against
Snapper's Eligible Inventory consisting of accessories and
Snapper's Eligible Parts (both engines and replacement parts)
shall not exceed $5,000,000. Such maximum amount is called the
"Inventory Credit Limit". Within such limitation, Snapper may
borrow, repay and reborrow under the Inventory Line of Credit
subject to the continued observance by Snapper of the terms
and conditions hereof.
(b) Inventory Loan Interest. All Inventory Loans shall bear
interest at a fluctuating rate per annum that shall vary
depending upon the Prime Rate in effect from time to time of
the Prime Rate plus one percent (1.0%). Interest shall be
computed on the basis of the actual days elapsed and a year of
360 days, even if the Prime Rate is based upon a 365-day year.
Interest for each calendar month shall be due and payable to
DFS by Snapper as of the first day of the next succeeding
month, and, at DFS' option, may be debited to Snapper's Loan
Account Ledger.
(c) Mandatory Prepayment. In addition to other required
payments, Snapper shall immediately pay DFS whatever sums may
be necessary from time to time to remain in compliance with
the Inventory Credit Limit, as it may change from time to
time, including, without limitation, as a result of any item
no longer being deemed an item of Eligible Inventory or
Eligible Parts.
(d) Consigned Inventory. DFS acknowledges that Snapper has and
will consign Inventory to Distributors. Snapper agrees to
obtain the documentation required in order to cause such
consigned Inventory to be deemed Eligible Inventory or
Eligible Parts, as the case may be. For a period of ninety
(90) days from November 1, 1995, DFS agrees that Snapper may
consign Inventory with a value, as measured by the wholesale
invoice price, of up to $8,000,000, even though Snapper has
not obtained the necessary consignment documentation;
provided, however, that even during this ninety (90) day
period any such Inventory for which the required consignment
documentation has not been obtained shall in no event be
deemed to be Eligible Inventory or Eligible Parts. After such
ninety (90) day period, the amount of Inventory permitted to
be consigned hereunder which has not been properly documented
shall be reduced by $2,000,000, and by $2,000,000 every thirty
(30) days thereafter until there is no consigned Inventory
which is not properly documented. DFS may, in its sole
discretion, advise Snapper in writing of any waivers of the
foregoing requirements."
3.3 Distributor Loans.
(Sections 3.3(a) and (b) are retained and reaffirmed)
"(c) Proceeds Disbursement. To induce DFS to acquire the
Distributor Portfolio, and to make additional Distributor
Loans, and to provide a reserve against Snapper's obligations
hereunder, Snapper agrees that DFS may defer paying the
proceeds of the
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Portfolio Purchase Price, and the proceeds of subsequent
Distributor Loans made by DFS, until a Request (as defined in
Section 4.1) is made by Snapper for payment thereof, subject
to satisfaction of the following payment conditions: The
cumulative amount of all such proceeds paid to, and retained
by, Snapper, minus the cumulative amount of all principal
repayments of Distributor Loans received by DFS, is called the
"Proceeds Balance." In no event shall the Proceeds Balance at
any time exceed the lesser of (i) $45,000,000 MINUS the
outstanding principal balance of all Inventory loans, and (ii)
80% of all new and unused Snapper Product which is owned by
and is in the possession of each Distributor ("Distributor
Inventory"), as measured by the wholesale invoice price
thereof, less the amount of any payment of principal or other
reduction in the amount payable by the Distributor, and, with
respect to which DFS has a first perfected priority security
interest.
In addition to other required payments, Snapper shall
immediately repay DFS whatever Distributor Loan proceeds may
be necessary to keep the Proceeds Balance in compliance with
the limitations set forth above, as such limit may change from
time to time.
Within such limitation, Snapper may request such proceeds, in
increments of not less than $1,000,000, and may return such
proceeds to reduce Snapper's interest obligations under clause
(d) below, and re-request such proceeds, at any time or from
time to time."
"(d) Floorplan Program Terms. The terms of all Distributor
Loans, which were acquired by DFS on the Closing Date pursuant
to Section 3.3(a), or subsequently advanced by DFS pursuant to
Section 3.3(b), are established from time to time by Snapper,
and provide for the scheduled repayment of principal, without
interest unless such payments are past due. In order to induce
DFS to make additional Distributor Loans, Snapper agrees to
pay DFS interest on that portion of the Distributor Loans
which comprises the Proceeds Balance outstanding from time to
time. The average outstanding principal amount of the Proceeds
Balance shall, as to each month or portion thereof during the
term of this Agreement, bear interest at a fluctuating rate
per annum that shall vary depending upon the Prime Rate in
effect from time to time, of the Prime Rate plus one percent
(1.0%).
Interest shall be computed on the basis of actual days elapsed
and a year of 360 days even if the Prime Rate is based upon a
365-day year. Interest for each calendar month shall be due
and payable to DFS by Snapper as of the first day of the next
succeeding month and, at DFS' option, may be debited to
Snapper's Loan Account Ledger.
DFS shall, upon the request of Snapper therefore made at any
time when there does not then exist an Event of Default,
assign to Snapper any Distributor Loan, and any Distributor
Receivable and any collateral security for such Distributor
Loan or Distributor Receivable, provided that any Proceeds
Balance relating to such Distributor Loan or Distributor
Receivable shall have been repaid by Snapper."
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(Sections 3.4, 3.5 and 3.6 are retained and reaffirmed).
"3.7 Annual Line Fee/Amendment Fee/Expenses. Snapper agrees to
pay DFS an annual line fee in connection with the Inventory
Line of Credit and all Distributor Loans, payable in advance
on November 1, 1995 in an amount equal to $337,500.00. This
line fee replaces the line fee originally due and payable on
October 23, 1995, under the Agreement. Once received by DFS,
the annual line fee shall not be refundable by DFS for any
reason.
Any line fees previously paid to DFS in respect of this
Agreement shall not be refunded by DFS. In connection with the
Amendment of the Agreement executed on or about November 1,
1995, Snapper agrees to pay to DFS a fee of $10,000 to be paid
upon the execution of said amendment by Snapper. Snapper
further agrees to pay all of DFS' reasonable out-of-pocket
expenses which arise in connection with the redocumentation of
the credit facilities provided pursuant to the Agreement or
which arise in connection with Snapper's conversion of
Distributors to consignment agents, including but not limited
to filing and recording fees and taxes, travel expenses and
fees and expenses of outside counsel, and whether such
expenses are incurred prior to or after the execution of the
Amendment to the Agreement dated on or about November 1,
1995."
3. DELETION OF SECTION 8.24. Section 8.24 of the Agreement is
deleted.
4. LOAN. Section 8.25 of the Agreement is deleted and restated in its
entirety as follows:
"8.25 Loan. Snapper shall not, and shall not permit any Snapper
Subsidiary to, make any loan to any Person, except for loans in
anticipation of reasonable and normally reimbursable business
expenses, trade credit extended in the ordinary course of Business and
loans to employees in an aggregate principal amount not to exceed
$300,000 at any one time outstanding."
5. FINANCIAL COVENANTS. Section 8.26 of the Agreement is deleted and
restated in its entirety as follows:
"8.26 Financial Covenants. Snapper will at all times maintain as of
the last day of each month as set forth below (provided, however, that
the covenants for September 30, 1996, shall remain in effect from that
date through the Maturity Date):
(a) a Tangible Net Worth and Subordinated Debt in the combined amount
of not less than the amount set forth below:
(b) a ratio of Debt to Tangible Net Worth and Subordinated Debt of not
more than the amount set forth below:
(c) a ratio of Current Tangible Assets to current liabilities of not
less than the amount set forth below:
(d) an EBIT of not less than the amount set forth below: and
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(e) an Interest Coverage Ratio of not less than the amount set forth
below:
(a) (b) (c) (d) (e)
Tangible Net Current Minimum Interest
Date Worth Leverage Ratio EBIT Coverage
----- ----- -------- ----- ---- --------
9/30/95 $60,859,000 1.57:1 1.36:1 ($27,985,000) -4.08:1
10/31/95 56,654,000 1.71:1 1.31:1 ( 37,096,000) -5.32:1
11/30/95 54,120,000 1.71:1 1.31:1 ( 42,285,000) -6.24:1
12/31/95 51,977,000 1.87:1 1.27:1 ( 50,983,000) -7.54:1
1/31/96 53,253,000 1.79:1 1.30:1 ( 48,555,000) -6.85:1
2/29/96 54,536,000 1.57:1 1.38:1 ( 45,950,000) -6.49:1
3/31/96 58,951,000 1.46:1 1.44:1 ( 39,641,000) -5.64:1
4/30/96 59,196,000 1.27:1 1.56:1 ( 37,844,000) -5.59:1
5/31/96 60,720,000 0.81:1 2.03:1 ( 30,122,000) -4.50:1
6/30/96 59,434,000 0.45:1 3.36:1 ( 30,406,000) -5.04:1
7/31/96 58,775,000 0.46:1 3.31:1 ( 21,869,000) -3.87:1
8/31/96 56,595,000 0.52:1 2.94:1 ( 16,524,000) -3.19:1
9/30/96 57,765,000 0.70:1 2.24:1 ( 7,915,000) -1.66:1
For purposes of this Section 8.26: (i) 'Tangible Net Worth'
means the book value of Snapper's assets less liabilities, excluding
from such assets all Intangibles; (ii) 'Intangibles' means and
includes general intangibles (as that term is defined in the Uniform
Commercial Code); accounts receivable and advances due from officers,
directors, employees, stockholders and affiliates; non-trade accounts
receivable and other unidentified accounts receivable; leasehold
improvements net of depreciation; licenses; good will; prepaid
expenses; escrow deposits; covenants not to compete; the excess of cost
over book value of acquired assets; franchise fees; organizational
costs; finance reserves held for recourse obligations; capitalized
research and development costs; and such other similar items as DFS may
from time to time determine in DFS' reasonable discretion; (iii) 'Debt'
means all of Snapper's liabilities and indebtedness of any kind and
nature whatsoever, whether direct or indirect, absolute or contingent,
and including obligations under capitalized leases, guaranties or with
respect to which Snapper has pledged assets to secure performance,
whether or not direct recourse liability has been assumed by Snapper;
(iv) 'Subordinated Debt' means all of Snapper's Debt which is
subordinated to the payment of Snapper's liabilities to DFS by an
agreement in form and substance satisfactory to DFS; (v) 'Current
Tangible Assets' means Snapper's current assets less, to the extent
otherwise included therein, all Intangibles; (vi) ' Interest Coverage
Ratio' means the ratio of (A) EBIT divided by (B) the interest expense
on Snapper's indebtedness for the period of calculation; and (vii)
'EBIT' shall mean, for any period of determination, the consolidated
net income of Snapper and the Snapper Subsidiaries before provision for
income taxes and interest expense (including, without limitation,
implicit interest expense on capitalized leases), all as determined in
accordance with GAAP, excluding therefrom (to the extent included): (a)
non-operating gains (including, without limitation, extraordinary or
nonrecurring gains, gains from discontinuance of operations and gains
arising from the sale of assets other than Inventory) during the
applicable period; (b) net
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earnings of any business entity (other than the Snapper Subsidiaries)
in which Snapper has an ownership interest unless such net earnings
shall have actually been received by Snapper in the form of cash
distributions; (c) any portion of the net earnings of any of the
Snapper Subsidiaries which for any reason is unavailable for payment
of dividends to Snapper; (d) the earnings of any Person to which any
assets of Snapper shall have been sold, transferred or disposed of, or
into which Snapper shall have merged, or been a party to any
consolidation or other form of reorganization, prior to the date of
such transaction; (e) any gain arising from the acquisition of any
securities of Snapper; and (f) non-operating losses arising from the
sale of capital assets during such period. The foregoing terms will be
determined in accordance with generally accepted accounting principles
consistently applied, and, if applicable, on a consolidated basis."
6. DELETION OF SECTION 10.6. Section 10.6 of the Agreement is
deleted.
7. TERM OF AGREEMENT. Section 11.22 is deleted and restated in its
entirety as follows:
"11.22 Term of Agreement. Except as otherwise provided in this
Agreement, the term of this Agreement shall terminate on the
Maturity Date. Snapper may, however, terminate this Agreement
at any time prior to the Maturity Date, provided that (a)
Snapper gives DFS not less than 90 days notice of its intent
to seek to repay the Obligations in full and terminate the
Agreement; (b) Snapper gives DFS at least 10 Business Days
notice of the date of such repayment and termination; and (c)
no such termination shall become effective until the
Obligations have been paid in full."
8. ADDITIONAL CASH COLLATERAL. As additional Collateral to secure
the Obligations, Snapper agrees to deliver and pledge to DFS upon the execution
of this Amendment, cash in the amount of $5,000,000 (the "Pledged Funds").
Snapper shall execute such documentation as DFS reasonably requests in order to
provide DFS with a first perfected security interest in the Pledged Funds.
9. GUARANTY BY METROMEDIA. Upon the execution of this Amendment,
Metromedia shall execute a guaranty of the obligations of Snapper in favor of
DFS pursuant to the form of Guaranty attached as Exhibit A. The Guaranty shall
remain in effect until the earlier of repayment of the Obligations in full and
the termination of this Agreement, or DFS' consent to the termination of the
Guaranty. A default under the Guaranty shall be a default by Snapper hereunder
and shall be considered a cross default pursuant to Section 9.7 of the
Agreement.
10. PLEDGE OF SNAPPER STOCK BY METROMEDIA. Upon the execution of
this Amendment, Metromedia shall deliver and pledge to DFS all of the issued
and outstanding stock of Snapper pursuant to the form of Securities Agreement
attached as Exhibit B. Metromedia shall execute such documentation as DFS
reasonably requests in order to provide DFS with a first perfected security
interest in said stock.
11. ASSIGNMENT OF AGREEMENT BY METROMEDIA TO SNAPPER. By its
signature to this Amendment, Snapper assumes the Agreement, all of the other
Loan Documents and all of the Obligations of Metromedia, including but not
limited to an outstanding principal balance of $44,831,338.00 (less collections
received on November 1, 1995, and applied to the outstanding principal
balance), the grant of security interest and the agreement to arbitrate
disputes, and agrees that it is a party to the Agreement for all purposes. DFS
consents to the assignment of the Agreement, the Loan Documents,
and the Obligations to Snapper by Metromedia, the assumption of the Agreement,
the other Loan Documents and the Obligations by Snapper and hereby releases
Metromedia as a party to the Agreement, and releases Metromedia from all
liabilities and obligations in connection with any of the Loan Documents.
Notwithstanding the foregoing, Metromedia shall have obligations under the
Guaranty, as described in Section 9 above, and the Stock Pledge Agreement
described in paragraph 10 above.
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No other or further assignment of this Agreement or the Loan Documents by
Snapper or any other party shall be permitted without the express prior written
consent of DFS. This Agreement shall terminate immediately, and all Obligations
shall be immediately due and payable, at such time as Snapper ceases to be a
wholly-owned subsidiary of Metromedia. Additionally, within a reasonable time
after the execution of this Amendment Snapper and DFS shall enter into an
amendment and restatement of the Agreement in order to set forth in a single
agreement, the substantive terms of the Agreement, as amended previously, and
by this Amendment, and shall execute such other documentation reasonably
satisfactory to DFS in connection therewith.
12. CASH AND ASSET TRANSFERS. Snapper shall not transfer cash or
other assets to any Affiliate, including but not limited to Metromedia, except
for the payment of intercompany charges imposed on Snapper by Metromedia for
taxes, insurance and other expenses incurred by Metromedia on behalf of Snapper
in the ordinary course of business of a type consistent with expenses charged
to Metromedia's subsidiaries generally (but shall not include any type of
management fee) at any time that (a) such transfer or the effect of such
transfer would cause Snapper to be in Default, or (b) there would be less than
$7,500,000 in loans or other proceeds available to Snapper under the terms of
this Agreement, as amended.
13. NO OTHER MODIFICATION. Except as expressly modified or amended
herein, all other terms and provisions of the Agreement will remain unmodified
and in full force and effect and the Agreement, as hereby amended, is ratified
and confirmed by Snapper and DFS.
14. CAPITALIZED TERMS. Except as otherwise defined herein, all
capitalized terms will have the same meanings set forth in the Agreement. All
references in the Agreement to "Xxxxx Industries, Inc.", "Xxxxx", "The Actava
Group Inc.", "Actava", "Snapper, a Division of the Actava Group Inc." or
"Snapper" shall be deemed references to Snapper. All references in the
Agreement to "ITT Commercial Finance Corp." or "ITT" shall be deemed references
to DFS.
1. Deletion of Section 3.18. Section 3.18 of the Agreement is
deleted.
2. Lien of Chemical Bank. No Event of Default shall have
occurred under this Agreement because of the lien of Chemical Bank on the
Collateral, including but not limited to, any Event of Default that would
otherwise arise pursuant to Sections 7.2(d), 7.5, 8.15 or 8.20 of the
Agreement. Such lien shall be a record priority lien (except with respect to
"Tract C" of the Snapper real property which shall be a third priority lien).
3. Financial Statements. Nothwithstanding anything to the
contrary contained in Section 8.12 of the Agreement, Snapper shall deliver to
DFS all such financial statements as DFS reasonably requests. DFS and Snapper
acknowledge that the exact requirements for the delivery of financial
statements shall be set forth in the amended and restated Agreement as
contemplated by this Amendment. Section 8.12(f) is deleted.
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IN WITNESS WHEREOF, Snapper and DFS have executed this Amendment as of the 1st
day of November, 1995.
SNAPPER, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
DEUTSCHE FINANCIAL SERVICES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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Exhibit a to
Exhibit 10(a)(vii)
GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION
In consideration of financing provided or to be provided by you to
SNAPPER, INC. ("Snapper"), and for other good and valuable consideration
received, we unconditionally and absolutely guaranty to you, the immediate
payment when due of all current and future liabilities owed by Snapper to you,
whether such liabilities are direct or indirect ("Liabilities"). We will pay you
on demand the full amount of all sums owed by Snapper to you, together with all
costs and expenses (including, without limitation, reasonable attorneys' fees).
We also indemnify and hold you harmless from and against all (a) losses, costs
and expenses you incur and/or are liable for (including, without limitation,
reasonable attorneys' fees) and (b) claims, actions and demands made by Snapper
or any third party against you, which in any way relate to any financing
relationship or transaction between you and Snapper.
Our guaranty will not be released, discharged or affected by, and we
hereby irrevocably consent to, any: (a) change in the manner, place, interest
rate, finance or other charges, or terms of payment or performance in any
current or future agreement between you and Snapper, the release, settlement or
compromise of or with any party liable for the payment or performance thereof
or the substitution, release, non-perfection, impairment, sale or other
disposition of any collateral thereunder; (b) change in Snapper's financial
condition; (c) interruption of relations between Snapper and you or us; (d)
claim or action by Snapper against you; and/or (e) increases or decreases in
any credit you may provide to Snapper. We will pay you even if you have not:
(i) notified Snapper that it is in default of the Liabilities, and/or that you
intend to accelerate or have accelerated the payment of all or any part of the
Liabilities, or (ii) exercised any of your rights or remedies against Snapper,
any other person or any current or future collateral. This Guaranty is
assignable by you and will inure to the benefit of your assignee. If Snapper
hereafter undergoes any change in its ownership, identity or organizational
structure, this Guaranty will extend to all current and future obligations
which such new or changed legal entity owes to you.
We irrevocably waive, to the extent permitted by applicable law:
notice of your acceptance of this Guaranty, presentment, demand, protest,
nonpayment, nonperformance, notice of breach or default, notice of intent to
accelerate and notice of acceleration of any indebtedness of Snapper, any right
of contribution from other guarantors, dishonor, the amount of indebtedness of
Snapper outstanding at any time, the number and amount of advances made by you
to Snapper in reliance on this Guaranty and any claim or action against
Snapper; all other demands and notices required by law; all rights of offset
and counterclaims against you or Snapper; all defenses to the enforceability of
this Guaranty (including, without limitation, fraudulent inducement). We
further waive all defenses (other than the defense of payment or performance)
based on suretyship or impairment of collateral, and defenses which the Snapper
may assert on the underlying debt, including but not limited to, failure of
consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability,
deceptive trade practices, accord and satisfaction and usury. We also waive all
rights to claim, arbitrate for or xxx for any punitive or exemplary damages. In
addition, we hereby irrevocably subordinate to you any
12
and all of our present and future rights and remedies: (a) of subrogation
against Snapper to any of your rights or remedies against Snapper, (b) of
contribution, reimbursement, indemnification and restoration from Snapper; and
(c) to assert any other claim or action against Snapper directly or indirectly
relating to this Guaranty, such subordinations to last until you have been paid
in full for all Liabilities. All of our waivers and subordinations herein will
survive any termination of this Guaranty.
We have made an independent investigation of the financial condition
of Snapper and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Snapper
financial information which enables us to remain continuously informed of
Snapper's financial condition. We represent and warrant to you that we have
received and will receive substantial direct or indirect benefit by making this
Guaranty and incurring the Liabilities. We will provide you with copies of our
10-Q and 10-K reports upon filing with the U.S. Securities and Exchange
Commission, and if we are no longer subject to such reporting requirements, we
will provide you with quarterly financial statements within sixty (60) days
after the end of each fiscal quarter and annual financial statements, audited
by a firm of independent certified public accountants, within one hundred
twenty (120) days after the end of each fiscal year. Further, we will provide
to you monthly a consolidated operational report which shall include
financial statements for Snapper. We warrant and represent to you that all
financial statements and information relating to us or Snapper which have been
or may hereafter be delivered by us or Snapper to you are true and correct in
all material respects and have been and will be prepared in accordance with
generally accepted accounting principles consistently applied and, with respect
to previously delivered statements and information, there has been no material
adverse change in the financial or business condition of us or Snapper since
the submission to you, either as of the date of delivery, or if different, the
date specified therein, and we acknowledge your reliance thereon. This Guaranty
will survive any federal and/or state bankruptcy or insolvency action involving
Snapper. We are solvent and our execution of this Guaranty will not make us
insolvent. If you are required in any action involving Snapper to return or
rescind any payment made to or value received by you from or for the account of
Snapper, this Guaranty will remain in full force and effect and will be
automatically reinstated without any further action by you and notwithstanding
any termination of this Guaranty or your release of us. Any delay or failure by
you, or your successors or assigns, in exercising any of your rights or
remedies hereunder will not waive any such rights or remedies. ORAL AGREEMENTS
OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE. TO PROTECT US AND YOU FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN OR AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
Notwithstanding anything herein to the contrary: (a) you may rely on any
facsimile copy, electronic data transmission or electronic data storage of this
Guaranty, any agreement between you and Snapper, any Statement of Transaction,
billing statement, invoice from a vendor, financial statements or other report,
and (b) such facsimile copy, electronic data transmission or electronic data
storage will be deemed an original, and the best evidence thereof for all
purposes, including, without limitation, under
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13
this Guaranty or any other agreement between you and us, and for all
evidentiary purposes before any arbitrator, court or other adjudicatory
authority. We have read and understood all terms and provisions of this
Guaranty. We acknowledge receipt of a true copy of this Guaranty and of all
agreements between you and Snapper. The meanings of all terms herein are
equally applicable to both the singular and plural forms of such terms.
In addition to our failure to fulfill our obligations to you under this
Guaranty, we shall be in default of our obligations to you under this Guaranty
if, pursuant to that certain Credit Agreement dated as of November 1, 1995
("Credit Agreement"), by and between Metromedia International Group, Inc. and
Chemical Bank, there occurs an Event of Default (as defined in said Credit
Agreement). We represent and warrant to you that we have not entered into any
financial covenants with Chemical Bank pursuant to the Credit Agreement.
Notwithstanding anything to the contrary contained in this Guaranty, if you
shall obtain any judgment against us on account of any of the Liabilities, you
agree not to levy or execute such judgment upon any of our assets prior to the
earliest of (i) 120 days after the date on which you first make demand for
possession of Snapper's Collateral (as defined in the Finance and Security
Agreement dated as of October 23, 1992, as amended, modified or restated from
time to time (the "Finance Agreement"), (ii) 120 days after the date on which
you have received possession of all or substantially all of the Collateral
following the occurrence of an Event of Default under the Finance Agreement,
(iii) the date on which you have, with respect to all or substantially all of
the Collateral, either completed the sale thereof or, with respect to the real
property or other Collateral in which you have a security interest, in the
exercise of reasonable business judgment you deem uncollectible without undue
cost or expense, abandoned to Snapper, (iv) the date that Snapper either is no
longer our wholly subsidiary or Snapper sells or transfers substantially all of
its assets (unless you consent to such sale or transfer or all of the
Obligations are repaid in full upon such sale or transfer), and (v) Snapper
becomes subject (whether voluntarily or involuntarily) to any federal
bankruptcy laws or any state insolvency or similar laws (subject to the
expiration of any cure period available to Snapper with respect to such matters
contained in the Finance Agreement); and provided, however, that the foregoing
should not be construed to prohibit you in any way from (a) seeking adequate
protection or relief from the automatic stay in any bankruptcy case of us or
Snapper; (b) filing a proof of claim in any such bankruptcy case; (c) asserting
entitlement to any proceeds derived from any sale or disposition of the
Collateral in any sheriff's sale, bankruptcy sale, receivership sale or other
court-ordered sale thereof; (d) enforcing other rights that you may have as the
holder of a judgment lien, vis-a-vis any other creditor of us or Snapper or,
upon any dissolution or liquidation of us or Snapper, vis-a-vis any shareholder
of us or Snapper, or (e) enforcing any other right or remedy against us,
Snapper or the Collateral, or enforcing any injunctive remedy against us or
Snapper.
BINDING ARBITRATION. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever (including, without limitation, all torts,
whether regarding negligence, breach of fiduciary duty, restraint of trade,
fraud, conversion, duress, interference, wrongful replevin, wrongful
sequestration, fraud in the inducement, usury or any other tort, all contract
actions, whether regarding express or implied terms, such as implied covenants
of good faith, fair dealing, and the commercial reasonableness of any
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14
collateral disposition, or any other contract claim, all claims of deceptive
trade practices or lender liability, and all claims questioning the
reasonableness or lawfulness of any act), whether arising before or after the
date of this Guaranty, and whether directly or indirectly relating to: (a) this
Guaranty and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between you and
us; (c) any act committed by you or by any parent company, subsidiary or
affiliated company of you (the "DFS Companies"), or by an employee, agent,
officer or director of a DFS Company, whether or not arising within the scope
and course of employment or other contractual representation of the DFS
Companies provided that such act arises under a relationship, transaction or
dealing between you and Snapper or you and us; and/or (d) any other
relationship, transaction, dealing or agreement between you and Snapper or you
and us (collectively the "Disputes"), will be subject to and resolved by
binding arbitration.
All arbitration hereunder will be conducted by the American
Arbitration Association ("AAA"). If the AAA is dissolved, disbanded or becomes
subject to any state or federal bankruptcy or insolvency proceeding, the
parties will remain subject to binding arbitration which will be conducted by a
mutually agreeable arbitral forum. The parties agree that all arbitrator(s)
selected will be attorneys with at least five (5) years secured transactions
experience. The arbitrator(s) will decide if any inconsistency exists between
the rules of any applicable arbitral forum and the arbitration provisions
contained herein. If such inconsistency exists, the arbitration provisions
contained herein will control and supersede such rules. The site of all
arbitrations will be in the Division of the Federal Judicial District in which
AAA maintains a regional office that is closest to Snapper.
Discovery permitted in any arbitration proceeding commenced hereunder
is limited as follows: No later than thirty (30) days after the filing of a
claim for arbitration, the parties will exchange detailed statements setting
forth the facts supporting the claim(s) and all defenses to be raised during
the arbitration, and a list of all exhibits and witnesses. No later than
twenty-one (21) days prior to the arbitration hearing, the parties will
exchange a final list of all exhibits and all witnesses, including any
designation of any expert witness(es) together with a summary of their
testimony; a copy of all documents and a detailed description of any property
to be introduced at the hearing. Under no circumstances will the use of
interrogatories, requests for admission, requests for the production of
documents or the taking of depositions be permitted. However, in the event of
the designation of any expert witness(es), the following will occur: (a) all
information and documents relied upon by the expert witness(es) will be
delivered to the opposing party, (b) the opposing party will be permitted to
depose the expert witness(es), (c) the opposing party will be permitted to
designate rebuttal expert witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
The Arbitrator(s) will not have the authority to award exemplary or
punitive damages.
All arbitration proceedings, including testimony or evidence at
hearings, will be kept confidential, although any award or order rendered by
the arbitrator(s) pursuant to the terms of this Guaranty may be entered as a
judgment or order in any state or federal court and may be entered as a
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15
judgment or order within the federal judicial district which includes the
residence of the party against whom such award or order was entered. This
Guaranty concerns transactions involving commerce among the several states. The
Federal Arbitration Act ("FAA") will govern all arbitration(s) and confirmation
proceedings hereunder.
Nothing herein will be construed to prevent your or our use of
bankruptcy, receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure, dation and/or any
other prejudgment or provisional action or remedy relating to any collateral
for any current or future debt owed by either party to the other. Any such
action or remedy will not waive your or our right to compel arbitration of any
Dispute.
If either we or you bring any other action for judicial relief with
respect to any Dispute (other than those set forth in the immediately preceding
paragraph), the party bringing such action will be liable for and immediately
pay all of the other party's costs and expenses (including reasonable
attorneys' fees) incurred to stay or dismiss such action and remove or refer
such Dispute to arbitration. If either we or you bring or appeal an action to
vacate or modify an arbitration award and such party does not prevail, such
party will pay all costs and expenses, including reasonable attorneys' fees,
incurred by the other party in defending such action. Additionally, if we xxx
you or institute any arbitration claim or counterclaim against you in which you
are the prevailing party, we will pay all costs and expenses (including
reasonable attorneys fees) incurred by you in the course of defending such
action or proceeding.
Any arbitration proceeding must be instituted: (a) with respect to any
Dispute for the collection of any debt owed by either party to the other,
within two (2) years after the date the last payment was received by the
instituting party; and (b) with respect to any other Dispute, within two (2)
years after the date the incident giving rise thereto occurred, whether or not
any damage was sustained or capable of ascertainment or either party knew of
such incident. Failure to institute an arbitration proceeding within such
period will constitute an absolute bar and waiver to the institution of any
proceeding with respect to such Dispute. Except as otherwise stated herein, all
notices, arbitration claims, responses, requests and documents will be
sufficiently given or served if mailed or delivered: (i) to us at our address
below; (ii) to you at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000, Attention: General Counsel; or such other address as the parties
may specify from time to time in writing.
The agreement to arbitrate will survive the termination of this
Guaranty.
IF THIS GUARANTY IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL
PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. WE WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
This Guaranty shall terminate when all of the Obligations of Snapper
to DFS have been fully paid and performed, including all reasonable costs and
expenses of every kind.
We acknowledge and agree that this Guaranty and all agreements between
Snapper and you have been substantially negotiated, and will be performed, in
the state of MISSOURI. Accordingly, we agree that all Disputes will be governed
by, and construed in accordance with, the laws of such state, except to the
extent inconsistent with the provisions of the FAA which will control and
govern all arbitration proceedings hereunder.
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16
THIS GUARANTY CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGES
WAIVER PROVISIONS.
Date: November 1, 1995 METROMEDIA INTERNATIONAL, GROUP, INC
By: /s/ W. Xxx Xxxxx
-------------------------
Print Name: W. Xxx Xxxxx
Title: Senior Vice President
2210 Resurgens Place
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
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Exhibit b to
Exhibit 10(a)(vii)
SECURITIES PLEDGE AGREEMENT
This Securities Pledge Agreement ("Agreement") is entered into this
1st day of November, 1995, by and between METROMEDIA INTERNATIONAL GROUP, INC.
("Pledgor") and Deutsche Financial Services Corporation ("DFS").
WHEREAS, Pledgor is or expects to guarantee to DFS the payment of all
indebtedness, obligations and liabilities of SNAPPER, INC. ("Snapper") under
the terms of that certain Guaranty dated November 1, 1995, given by Pledgor to
DFS guaranteeing all of the liabilities and obligations of Snapper to DFS;
WHEREAS, DFS is willing to grant certain financial accommodations to
Snapper pursuant to that certain Finance and Security Agreement dated October
23, 1992, as amended, and related agreements, and any present and future
amendments or addendums thereto or restatements thereof, with Snapper
(collectively "Financing Agreements"), provided DFS is granted additional
collateral as security for Snapper's indebtedness to DFS; and
WHEREAS, Pledgor desires to pledge certain securities to DFS as
security for Pledgor's indebtedness to DFS, whether direct or indirect,
absolute or contingent, now or hereafter existing.
NOW THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, DFS and Pledgor hereby agree as follows:
1. As additional collateral to secure the payment and discharge
of all indebtedness, obligations and liabilities of Pledgor to DFS, howsoever
created, evidenced or arising, whether direct or indirect, absolute or
contingent, now or hereafter existing, due or to become due, and whether
primary, secondary, sole, joint or several (all such indebtedness, obligations
and liabilities being hereinafter collectively called "Liability" or
Liabilities"), Pledgor hereby grants to DFS a security interest in and assigns,
pledges, hypothecates and delivers to DFS the following described securities
and all substitutions, dividends, interest and redemption prices and other
rights with respect to such securities and all other property received in
respect of or in exchange for such securities (collectively "Collateral"):
SNAPPER, INC., 1,000 shares of common stock issued and outstanding
Pledgor will deliver to DFS such stock powers and similar documents,
satisfactory in form and substance to DFS, with respect to the Collateral as
DFS may reasonably request. Pledgor will not sell, assign, exchange, pledge or
otherwise transfer or encumber any of its right to the Collateral, except that
the Collateral may also be pledged to Chemical Bank (the "Junior Creditor") on
a second priority basis. Pledgor will deliver possession of the
18
Collateral to DFS upon the execution of this Agreement. DFS will maintain
possession of the Collateral throughout the term of this Agreement.
2. Pledgor hereby represents and warrants the following with
respect to the Collateral: (a) Pledgor is the lawful owner of the Collateral;
(b) the Collateral is not subject to any lien, pledge, restriction, charge,
encumbrance or security interest or right or option ("collectively, "Liens") on
the part of any third person to purchase or otherwise acquire the Collateral or
any part thereof, except for Liens of the Junior Creditor, and (c) Pledgor has
the right and authority to deliver, pledge, assign and transfer the Collateral
to DFS.
3. Notwithstanding any provision to the contrary contained in
this Agreement, so long as no Event of Default has occurred and is continuing
under the terms of the Financing Agreements:
a) all dividends paid in cash or its equivalent on account of the
Collateral, or any part thereof, will be paid to Pledgor (subject to
any restrictions on Snapper's transfer of cash contained in the
Financing Agreement).
b) Pledgor will have the full and unrestricted voting rights accorded
to all or any part of the Collateral.
4. DFS will be deemed to have exercised reasonable care in the
custody and preservation of the Collateral if it takes any action which Pledgor
requests in writing, but DFS' failure to comply with any such request will not
of itself be deemed a failure to exercise reasonable care, and a failure of DFS
to preserve or protect any rights with respect to the Collateral against prior
parties, or to do any act with respect to the preservation of the Collateral
not so requested by Pledgor, will not be deemed to be a failure to exercise
reasonable care in the custody or preservation of the Collateral.
5. If Pledgor is entitled to receive dividends (other than cash
dividends), other distributions (including stock redemption proceeds) or other
securities in exchange for the Collateral, whether by way of dividends (other
than cash dividends), stock dividends, liquidating dividends,
recapitalizations, mergers, consolidations, combinations or exchanges of shares
or otherwise, or any shares of stock or fractions thereof are issued pursuant
to any stock split involving any of the Collateral, such dividends,
distributions, or other securities, or certificates representing the same, will
be delivered to DFS and will be treated as part of the Collateral. Such
transfer will be made within five days of receipt by Pledgor. If Snapper
defaults to DFS under the terms of the Financing Agreements and such default is
continuing, DFS will have the sole and exclusive right to receive and retain
all cash dividends on the Collateral and to apply the same toward payment of
the Liabilities until such Liabilities are paid in full. Furthermore, during
the continuation of any default by Snapper, DFS will have the right, but will
not be obligated, to vote or give consent with respect to the corporate
securities comprising all or any part of the Collateral.
6. Pledgor releases and holds DFS harmless from all claims,
causes of action and demands of any kind arising out of, or with respect to,
the Collateral in its possession hereunder and any actions which DFS takes or
omits to take with respect thereto. Pledgor will reimburse DFS, on demand, for
all costs and expenses, including reasonable attorneys' fees, which DFS incurs
in connection with the administration and enforcement of this Agreement. The
foregoing obligations shall be subject to DFS' obligation to use reasonable
care in the custody and preservation of the Collateral pursuant to Section
9-207 of the Uniform Commercial Code.
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7. If Snapper defaults under the terms of the Financing
Agreements and such default is continuing, DFS may exercise any rights and
remedies available to it under the Uniform Commercial Code as in effect from
time to time, or may exercise any other rights available to it by law. Pledgor
recognizes that DFS may be unable to effect a public sale of all or a part of
the Collateral by reason of certain prohibitions contained in the Securities
Act of 1933, as amended, as now or hereafter in effect, or in applicable state
securities laws as now or hereafter in effect, but may be compelled to resort
to one or more private sales to a single purchaser or a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view to the
distribution or resale thereof. Pledgor agrees that private sales may be at
prices and other terms less favorable to Pledgor than if such securities were
sold at public sale. DFS has no obligation to delay the sale of any such
portion of the Collateral for the period of time necessary to permit the issuer
of such securities to register such securities, even if such issuer would, or
should, agree to register such securities for public sale under such applicable
securities laws. Pledgor agrees that private sales made under the foregoing
circumstances will be deemed to have been made in a commercially reasonable
manner. Pledgor further authorizes DFS to comply with any limitation or
restriction in connection with the sale of the Collateral as it may be advised
by counsel is necessary in order to avoid any violation of applicable law, or
in order to obtain any required approval of the sale by any governmental
regulator. Pledgor agrees that such compliance will not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor will DFS be liable or accountable to Pledgor for any discount
allowed because such Collateral is sold in compliance with any such limitation
or restriction. If DFS sells any of the Collateral upon credit or for future
delivery, DFS will not be liable for the failure of the purchaser thereof to
purchase or pay for same and, in the event of any such failure, DFS may resell
such portion of the securities. In no event will Pledgor be credited with any
part of the proceeds of sale of any of the Collateral until cash payment
therefore has been actually received by DFS and applied to the Pledgor's
indebtedness arising from the Liabilities.
8. Pledgor does hereby irrevocably make, constitute, designate
and appoint DFS (and any of DFS' officers, employees or agents designated by
DFS) as Pledgor's true and lawful attorney-in-fact and agent. In the event of
any default by Snapper under the Financing Agreements and such default is
continuing, such agent will have full power and authority for and in the name
of Pledgor to arrange for the transfer of the Collateral to the name of DFS, or
any purchaser from or nominee of DFS. Pledgor does hereby ratify and confirm
all that said agent may do or cause to be done in connection with any of the
power or authority herein conferred.
9. This Agreement will terminate when all of the Liabilities of
Pledgor to DFS and all liabilities and obligations of Snapper to DFS have been
fully paid and performed, including all reasonable costs and expenses of every
kind, at which time DFS will reassign and redeliver to Pledgor such of the
Collateral as has not been sold or otherwise applied by DFS pursuant to the
terms hereof. Any such reassignment will be without recourse or warranty by
DFS.
10. Pledgor expressly waives to the extent permitted by applicable
law: (a) any irregularity, invalidity or enforceability of the Liabilities
hereby secured; (b) notice of the acceptance hereof by DFS; (c) notice of the
existence of any of the Liabilities; (d) notice of default by Snapper in the
20
payment of any of its liabilities now or hereafter owed to DFS; (e)
presentment, demand for payment, protest, and notice of dishonor and of protest
on any Liabilities; (f) notice or advertisement of the sale of the Collateral;
or (g) any other notice of any kind or character.
11. Pledgor hereby expressly consents: (a) to the terms and
conditions of the Financing Agreements and any and all other agreements
executed by Snapper with DFS evidencing liabilities and obligations owed to DFS
or, in connection therewith, regarding the disposition of any collateral
therefore; and (b) Pledgor will not be subrogated to any of the rights of DFS in
any collateral heretofore or hereafter pledged by Snapper or the proceeds
thereof.
12. If DFS elects to exercise any of the remedies provided in this
Agreement, there shall be included as part of the Liabilities: reasonable
attorneys' fees; expenditures which may be paid or incurred by or on behalf of
DFS for publication and advertising costs; transfer taxes; and any other costs
and expenses incurred or paid in connection with any sale, transfer or
foreclosure of the Collateral, (including without limitation, all monies, if
any, paid by DFS to any party on account of such party's asserted, claimed or
actual prior security interest in the Collateral). Pledgor agrees that DFS, in
connection with any such payment, may consider any statement rendered by any
such party to DFS on account thereof as true and accurate absent manifest error
and DFS will not be responsible for any error or mistake therein or
misrepresentation thereof and Pledgor will look only to such other party on
account thereof (except for its own gross negligence or wilful misconduct). All
such expenditures will be immediately due and payable and bear interest at the
Default Rate of Interest (as defined in the Financing Agreement) and will be
secured by the Collateral.
13. This Agreement will be binding upon and inure to the benefit
of the parties hereto, and their respective successors and assigns, except that
Pledgor will not be permitted to assign this Agreement or any interest herein
or in the Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part thereof, or any
cash or property held by Pledgor as Collateral under this Agreement (except for
the second priority lien of Chemical Bank).
14. This Agreement may not be modified, altered or amended in any
manner whatsoever except by a further agreement in writing signed by DFS and
Pledgor.
15. If any one or more of the provisions contained in this
Agreement or any document executed in connection herewith is invalid, illegal
or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein will
not in any way be affected or impaired.
16. No delay on the part of DFS in exercising any right or remedy
hereunder will operate as a waiver thereof, and no partial exercise by DFS of
any right or remedy will preclude other or further exercise thereof or the
exercise of any other right or remedy. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available to DFS.
17. BINDING ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, the relationship resulting in or from this
Agreement, the breach of any duties hereunder or any other relationship,
21
transaction or dealing between the parties (collectively "Disputes") will be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of The American Arbitration Association, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000. Except as otherwise stated herein, all notices,
arbitration claims, responses, requests and documents will be sufficiently
given or served if mailed or delivered: (i) to DFS at 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General Counsel; and (ii)
to any other party at the address specified herein; or such other address as
the parties may specify from time to time in writing. The parties agree that
all arbitrators selected will be attorneys with at least five (5) years secured
transactions experience. Any award rendered by the arbitrator(s) may be entered
as a judgment or order and confirmed or enforced by either party in any state
or federal court having competent jurisdiction thereof. If either party brings
or appeals any judicial action to vacate or modify any award rendered pursuant
to arbitration or opposes the confirmation of such award and the party bringing
or appealing such action or opposing confirmation of such award does not
prevail, such party will pay all of the costs and expenses (including, without
limitation, court costs, arbitrators fees and expenses and attorneys' fees)
incurred by the other party in defending such action. Additionally, if either
party brings any action for judicial relief in the first instance without
pursuing arbitration prior thereto, the party bringing such action for judicial
relief will be liable for and will immediately pay to the other party all of
the other party's costs and expenses (including, without limitation, court
costs and attorneys' fees) to stay or dismiss such judicial action and/or
remove it to arbitration. The failure of either party to exercise any rights
granted hereunder shall not operate as a waiver of any of those rights. THE
LAWS OF THE STATE OF MISSOURI WILL GOVERN THIS AGREEMENT AND ALL TRANSACTIONS
HEREUNDER AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT AND
IN ALL OTHER RESPECTS; PROVIDED, HOWEVER, THAT THE FEDERAL ARBITRATION ACT
("FAA"), TO THE EXTENT INCONSISTENT, WILL SUPERSEDE THE LAWS OF SUCH STATE AND
GOVERN. This Agreement concerns transactions involving commerce among the
several states. The arbitrators will not be empowered to award punitive
damages. The agreement to arbitrate will survive termination of this Agreement.
IF THIS AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, EACH PARTY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS LOCATED WITHIN SUCH STATE
AND AGREE THAT ALL LEGAL PROCEEDINGS WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. EACH PARTY WAIVES ANY RIGHT TO A JURY
TRIAL IN ANY SUCH PROCEEDING.
22
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Pledge Agreement to be executed on the date above written.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE
DAMAGE WAIVER PROVISIONS.
METROMEDIA INTERNATIONAL GROUP, INC.
By: /s/ W. Xxx Xxxxx
---------------------------------
Print Name: W. Xxx Xxxxx
Title: Senior Vice President
Address: 2210 Resurgens Plaza
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
