Exhibit 10.40
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BRIDGE LOAN AGREEMENT
between
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS, INC.,
as Borrower
and
METROMEDIA COMPANY,
as Lender
Dated as of February 29, 1996
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . 7
SECTION 2. AMOUNT AND TERMS OF COMMITMENT . . . . . . . . . . . . . . . . . 8
2.1 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . . 9
2.4 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . 10
2.6 Computation of Interest . . . . . . . . . . . . . . . . . . . . . 11
2.7 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.8 Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 12
3.1 Existence; Compliance with Law . . . . . . . . . . . . . . . . . 12
3.2 Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.4 No Material Litigation . . . . . . . . . . . . . . . . . . . . . 14
3.5 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.7 No Untrue Statement . . . . . . . . . . . . . . . . . . . . . . . 15
3.8 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . 15
3.9 Investment Company Act . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Conditions to Initial Loans . . . . . . . . . . . . . . . . . . . 16
4.2 Conditions to Each Loan . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.1 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . 18
5.2 Compliance of Laws . . . . . . . . . . . . . . . . . . . . . . . 19
5.3 Maintenance of Existence . . . . . . . . . . . . . . . . . . . . 19
5.4 Maintenance of Property; Insurance . . . . . . . . . . . . . . . 19
5.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 21
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Page
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SECTION 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . 25
7.2 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . 25
7.3 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . 26
7.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 26
7.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.6 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . 27
7.7 Survival of Representations and
Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 28
7.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.11 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.13 Interest Rate Limitation . . . . . . . . . . . . . . . . . . . . 29
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BRIDGE LOAN AGREEMENT, dated as of February 29, 1996, between
METROMEDIA COMPANY, a Delaware general partnership (the "Lender"), and
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METROMEDIA INTERNATIONAL TELECOMMUNICATIONS, INC., a Delaware corporation (the
"Borrower").
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The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Agreement": this Bridge Loan Agreement, as amended, supplemented
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or otherwise modified from time to time.
"Alliance": Alliance Entertainment Corp., a Delaware corporation.
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"Alliance Merger": means the merger contemplated by the Agreement
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and Plan of Merger dated as of December 20, 1995, by and among MIG, Alliance and
Alliance Mergerco (as such agreement may be amended).
"Alliance Mergerco": Alliance Merger Corp., a Delaware corporation.
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"Available Commitment": at any time, an amount equal to the excess,
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if any, of (a) the amount of the
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Lender's Commitment over (b) the aggregate principal amount of all Loans made by
the Lender during the Commitment Period.
"Borrowing Date": any Business Day specified in a notice pursuant
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to subsection 2.3 as a date on which the Borrower requests the Lender to make
Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City are authorized or required by law to
close.
"Closing Date": the date on which the conditions precedent set
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forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Commitment": the obligation of the Lender to make Loans to the
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Borrower hereunder in an aggregate principal amount at any one time outstanding
not to exceed $15,000,000, as such amount is reduced by the amount of any Loans
made hereunder.
"Commitment Period": the period from and including the date hereof
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to but not including the Termination Date or such earlier date on which the
Commitment shall terminate as provided herein.
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"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 7, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States
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of America.
"Equity Interest": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, all partnership interests in any Person, and any
and all warrants or options to purchase any of the foregoing.
"Event of Default": any of the events specified in Section 6,
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provided that any requirement for the giving of notice, the lapse of time, or
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both, or any other condition, has been satisfied.
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"GAAP": generally accepted accounting principles in the United
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States of America in effect from time to time.
"Goldwyn Merger": means the merger contemplated by the Agreement and
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Plan of Merger dated January 31, 1996 by and among MIG, Goldwyn and SGC Mergerco
(as such agreement may be amended).
"Goldwyn": The Xxxxxx Xxxxxxx Company, a Delaware corporation.
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"Governmental Authority": any nation or government, any state or
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other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Interest Payment Date": (i) the date which is three months from
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the date of the first borrowing hereunder and (ii) the Termination Date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement of any kind or
nature whatsoever.
"Loan": as defined in subsection 2.1.
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"Loan Documents": this Agreement and the Note.
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"Material Adverse Effect": a material adverse effect on (a) the
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business, operations, property, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement the Note or the rights or remedies of the
Lender hereunder or thereunder.
"Mergers": means, collectively, the Alliance Merger and the Goldwyn
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Merger.
"MIG": means Metromedia International Group, Inc., a Delaware
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corporation, which owns all of the outstanding shares of stock of Metromedia
International Telecommunications, Inc.
"Note": as defined in subsection 2.2.
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"Person": an individual, partnership, corporation, business trust,
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joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Prime Rate": shall mean the rate of interest per annum publicly
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announced from time to time by Chemical Bank as its prime rate in effect at its
principal office in New York City.
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"Refinancings": means the proposed refinancing by MIG of
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substantially all of its indebtedness and the indebtedness of its subsidiaries,
Goldwyn and Alliance contemplated to occur concurrently with the consummation of
the Mergers.
"Regulation U": Regulation U of the Board of Governors of the
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Federal Reserve System as in effect from time to time.
"Requirement of Law": as to any Person, the Certificate of
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Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer and the
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president or executive vice president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"SGC Mergerco": SGC Merger Corp., a Delaware corporation.
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"Subsidiary": as to any Person, a corporation, partnership or other
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entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Termination Date": the earlier to occur of (i) the consummation of
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the Refinancings or (ii) January 15, 1997.
1.2 Other Definitional Provisions. (a) The words "hereof,"
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"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, subsection,
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Exhibit references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1 Commitment. Subject to the terms and conditions hereof, the
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Lender agrees to make loans ("Loans") to the Borrower from time to time during
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the Commitment Period during which period the Borrower may borrow, prepay and
reborrow in accordance with the provisions hereof, provided, that immediately
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after making each Loan and after giving effect to all Loans repaid concurrently
with the making of any Loans, the aggregate principal amount of the Loans
outstanding at any one time would not exceed the amount of the Lender's
Commitment.
2.2 Note. The Loans made by the Lender shall be evidenced by a
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promissory note of the Borrower, substantially in the form of Exhibit A (the
"Note"), payable to the order of the Lender and in a principal amount equal to
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the lesser of (a) the amount of the initial Commitment of the
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Lender and (b) the aggregate unpaid principal amount of all Loans made by the
Lender.
2.3 Procedure for Borrowing. The Borrower may borrow under the
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Commitment during the Commitment Period on any Business Day, provided, that the
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Borrower shall give the Lender irrevocable notice (which notice must be received
by the Lender prior to 1:00 P.M., New York City time, one Business Day prior to
the requested Borrowing Date), specifying (i) the amount to be borrowed and
(ii) the requested Borrowing Date. Each borrowing under the Commitment shall be
in an amount equal to $500,000 or a whole multiple of $50,000 in excess thereof
(or, if the then Available Commitment is less than $50,000, such lesser amount).
The Lender will make the amount of each borrowing available to the Borrower by
11:00 A.M. New York City time by wire transfer of immediately available funds to
an account maintained by the Borrower and specified in writing to the Lender.
2.4 Optional Prepayments. The Borrower may at any time and from
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time to time upon three (3) days advance notice to the Lender, prepay the Loans,
in whole or in part, without premium or penalty. Such prepayment shall be
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applied first to interest and then to principal. Prior to the Termination Date,
the Borrower may reborrow amounts prepaid pursuant to this Section 2.4 up to the
amount of the Commitment.
2.5 Interest Rates and Payment Dates.
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(a) Each Loan shall bear interest at a rate per annum equal to
the Prime Rate plus 2%.
(b) If all or a portion of (i) the principal amount of any Loan
or (ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue interest,
the Prime Rate plus 2%, in each case from the date of such non-payment until
such amount is paid in full.
(c) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (b) of this
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subsection shall be payable from time to time on demand.
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2.6 Computation of Interest. Interest shall be calculated on the
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basis of a 360-day year for the actual days elapsed. Any change in the interest
rate on a Loan resulting from a change in the Prime Rate shall become effective
as of the opening of business on the day on which such change becomes effective.
The Lender shall as soon as practicable notify the Borrower of the effective
date and the amount of each such change in interest rate.
2.7 Payments. All payments (including prepayments) to be made by
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the Borrower hereunder and under the Note, whether on account of principal,
interest, or otherwise, shall be made without set off or counterclaim and shall
be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Lender in immediately available funds. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
2.8 Payment Date. All principal and any unpaid interest
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outstanding hereunder shall be due and payable in full on the Termination Date.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the
Loans, the Borrower hereby represents and warrants to the Lender that:
3.1 Existence; Compliance with Law. The Borrower (a) is duly
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organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
and (c) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.2 Power; Authorization; Enforceable Obligations. The Borrower
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has the corporate power and authority, and the legal right, to make, deliver and
perform each of the Loan Documents and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions each of the Loan Documents. Except as set forth on Schedule 3.2, no
consent or authorization
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of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of either of the Loan Documents. Each Loan Document has been
duly executed and delivered on behalf of the Borrower. Each Loan Document
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
3.3 No Legal Bar. The execution, delivery and performance of
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either of the Loan Documents, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower and will not result in, or require, the creation or
imposition of any Lien on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation, except to the extent such
violations
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could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
3.4 No Material Litigation. No litigation, investigation or
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proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or
against any of its properties or revenues (a) with respect to either of the Loan
Documents or any of the transactions contemplated hereby or thereby, or
(b) which could reasonably be expected to have a Material Adverse Effect.
3.5 No Default. The Borrower is not in default under or with
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respect to any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
3.6 Taxes. The Borrower has filed or caused to be filed all tax
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returns or applied for extensions which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes that are due and payable, and has
paid any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any Governmental
Authority (other than
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any taxes, assessments, fees or other charges the amount of which are currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Borrower).
3.7 No Untrue Statement. No statement contained in this
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Agreement, nor in any certificate or other document delivered to the Lender by
the Borrower (or its representatives) in connection with this Agreement or the
transactions contemplated hereby, contains any untrue statement of a material
fact, or omits to state a material fact necessary in order to make the
statements contained therein or herein not misleading.
3.8 Federal Regulations. No part of the proceeds of any Loans will
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be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors.
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3.9 Investment Company Act. The Borrower is not an "investment
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company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of the Lender to
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make the initial Loan requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan on the Closing
Date, of the following conditions precedent:
(a) Loan Documents. The Lender shall have received (i) this
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Agreement, executed and delivered by a duly authorized officer of the Borrower
and (ii) the Note, executed and delivered by a duly authorized officer of the
Borrower.
(b) Corporate Proceedings of the Borrower. The Lender shall
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have received a copy of the resolutions, in form and substance satisfactory to
the Lender, of the Borrower authorizing (i) the execution, delivery and perfor-
xxxxx of this Agreement and the Note and (ii) the borrowings
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contemplated hereunder, certified by the Secretary or an Assistant Secretary of
the Borrower as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Lender and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded.
(c) Borrower Incumbency Certificate. The Lender shall have
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received a Certificate of the Borrower, dated the Closing Date, as to the
incumbency and signature of the officers of the Borrower executing either of the
Loan Documents satisfactory in form and substance to the Lender, executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Borrower.
4.2 Conditions to Each Loan. The agreement of the Lender to make
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any Loan requested to be made by it on any date (including, without limitation,
its initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations
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and warranties made by the Borrower in or pursuant to either of the Loan
Documents shall be true
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and correct in all material respects on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
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occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan that the
conditions contained in this subsection 4.2 have been satisfied.
SECTION 5. COVENANTS
The Borrower hereby agrees that, so long as the Commitment remains
in effect, the Note remains outstanding and unpaid or any other amount is owing
to the Lender hereunder, the Borrower shall:
5.1 Payment of Obligations. Pay, discharge or otherwise satisfy at
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or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP
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with respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
5.2 Compliance of Laws. Comply with all applicable laws
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regulations, orders of Governmental Authorities and obtain and comply in all
material respects with, and maintain any and all licenses, approvals,
notifications, registrations or permits required by applicable laws, regulations
or orders, except in each such case to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect.
5.3 Maintenance of Existence. Preserve, renew and keep in full
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force and effect its existence and take all reasonable action to maintain all
its rights, privileges and franchises as necessary and desirable in the normal
conduct of its business; provided, that the Borrower may merge or consolidate
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with or transfer or assign all or substantially all of its property, business or
assets to another Person as long as such Person assumes all of the Borrower's
obligations under this Agreement.
5.4 Maintenance of Property; Insurance. Keep all property
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necessary in its business in good working order and condition; maintain with
financially sound and reputable
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insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to the Lender, upon written request, full information as to the
insurance carried.
5.5 Notices. Promptly give notice to the Lender of:
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(a) the occurrence of any Default or Event of Default; and
(b) the occurrence of any event which causes any representation
or warranty of the Borrower to be untrue or a breach of any covenant of the
Borrower set forth in this Agreement; and
(c) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole or any development or event which could
reasonably be expected to have a Material Adverse Effect.
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SECTION 6. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of the Note
when due in accordance with the terms thereof or hereof; or the Borrower shall
fail to pay any interest on the Note, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(c) The Borrower shall default in the observance or performance
of any other agreement contained in this Agreement, and such default shall
continue unremedied for a period of 30 days; or
(d) (i) The Borrower shall commence any case, proceeding or
other action (A) under any existing or
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future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower any case,
proceeding or other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
90 days; or (iii) there shall be commenced against the Borrower any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or
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stayed or bonded pending appeal within 90 days from the entry thereof; or
(iv) the Borrower shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(e) One or more judgments or decrees shall be entered against
the Borrower involving in the aggregate liability (not paid or fully covered by
insurance) of $10,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or.
(f) Any warrant of attachment, levy or execution involving an
amount in excess of $10,000,000 shall be issued or levied against any of the
Borrower and such warrant of attachment, levy or execution shall not be
released, vacated, stayed or bonded within 60 days of its issue or levy; or
(g) A material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries
24
taken as a whole shall have occurred since the date of the first borrowing under
this Agreement; then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (d) above with respect to
the Borrower, automatically the Commitment shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Note shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken, in the Lender's discretion: the Lender may by notice to
the Borrower declare the Commitment to be terminated forthwith, whereupon the
Commitment shall immediately terminate; and the Lender may by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the Note to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
25
SECTION 7. MISCELLANEOUS
7.1 Amendments and Waivers. Neither this Agreement, the Note, nor
----------------------
any terms hereof or thereof may be amended, supplemented or modified except in
an instrument executed by the Lender and the Borrower in accordance with the
provisions of this subsection. The Lender may, from time to time, waive, on
such terms and conditions as the Lender may specify in such instrument, any of
the requirements of this Agreement or the Note or any Default or Event of
Default and its consequences. Any such wavier and any such amendment,
supplement or modification shall be binding upon the Borrower and the Lender.
In the case of any waiver, the Borrower and the Lender shall be restored to
their former position and rights hereunder and under the Note, and any Default
or Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
7.2 Costs and Expenses. Each of the Lender and the Borrower
------------------
shall pay their own costs and expenses incurred in connection with the
negotiation, execution and delivery of this Agreement and the Note.
26
7.3 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
--------------------
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTE OR FOR ANY COUNTERCLAIM
THEREIN.
7.4 Further Assurances. From and after the date hereof, upon the
------------------
reasonable request of any party to this Agreement, the other party shall
execute, acknowledge and deliver, all such further agreements, instruments and
assurances as may be necessary and appropriate to carry out the transactions
contemplated by this Agreement and the Note.
7.5 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Note:
27
The Lender: Metromedia Company
Metropolitan Executive Tower
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
The Borrower: Metromedia International
Telecommunications, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
Telecopy: (000) 000-0000
7.6 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Lender, any right, remedy, power or
privilege hereunder or under the Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
7.7 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made hereunder, in the Note, and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall
28
survive the execution and delivery of this Agreement and the Note and the making
of the Loans hereunder.
7.8 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, provided, that the Borrower may not assign or transfer
--------
any of its rights or obligations under this Agreement without the prior written
consent of the Lender; provided further, that the Lender may assign its rights
-------- -------
to any entity controlling, controlled by or under common control with the
Lender.
7.9 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
7.10 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction
29
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
7.11 Integration. This Agreement and the Note represent the
-----------
agreement of the Borrower and the Lender with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Lender relative to the subject matter hereof not expressly set forth or
referred to herein or in the Note.
7.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTE AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
7.13 Interest Rate Limitation. Notwithstanding anything herein
------------------------
or in the Note to the contrary, if at anytime the applicable interest rate,
together with all fees and charges that are treated as interest under applicable
law (collectively, the "Charges"), as provided for herein, or otherwise
contracted for charged, received, taken or reserved by the Lender shall exceed
the maximum lawful rate (the "Maximum Rate") that may be contracted for,
charged, taken, received or reserved by the Lender in accordance with
30
applicable law, the rate of interest payable under the Note, together with all
Charges payable to the Lender shall be limited to the Maximum Rate.
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
METROMEDIA COMPANY
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Schedule 3.2
1. Filings under the Securities Exchange Act of 1934, as amended from time to
time.
2. Compliance with the Securities Act of 1933, as amended from time to time.
EXHIBIT A
---------
REVOLVING CREDIT NOTE
$15,000,000 New York, New York
February 29, 1996
FOR VALUE RECEIVED, the undersigned, METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS INC., a Delaware corporation (together with its successors
and assigns, the "Borrower"), hereby unconditionally promises to pay to the
--------
order of METROMEDIA COMPANY, a Delaware general partnership (the "Lender"), in
------
lawful money of the United States of America and in immediately available funds,
on the Termination Date, or such earlier date as payments shall be due, whether
by acceleration or otherwise in accordance with the Bridge Loan Agreement (as
defined below), at such office as the Lender may designate in writing, from time
to time, the principal amount of (a) FIFTEEN MILLION DOLLARS ($15,000,000), or,
if less, (b) the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower pursuant to subsection 2.1 of the Bridge Loan Agreement.
The Borrower further agrees to pay interest in like money on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 2.5 of the Bridge Loan Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Loan made
pursuant to the Bridge Loan Agreement and the date and amount of each payment or
prepayment of principal thereof; provided, however, that the failure to so
-------- -------
endorse the schedules annexed hereto shall not affect the validity of the
Borrower's obligation to repay amounts due hereunder.
This Note (a) is the Note referred to in the Bridge Loan Agreement
dated as of February 29, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Bridge Loan Agreement"), between the Borrower and the
---------------------
Lender, (b) is entitled to the benefits of and is subject to the provisions of
the Bridge Loan Agreement and
(C) is subject to optional and mandatory prepayment in whole or in part as
provided in the Bridge Loan Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Bridge Loan Agreement.
No delay or omission on the part of the Lender or any holder hereof
in exercising its rights under this Note,
or delay or omission on the part of the Lender in exercising its rights under
the Bridge Loan Agreement, or course of conduct relating thereto, shall operate
as a waiver of such rights or any other right of the Lender or any holder
hereof, nor shall any waiver by the Lender of any such right or rights on any
one occasion be deemed a bar to, or waiver of, the same right or rights on any
future occasion.
The Borrower agrees to pay or reimburse the Lender for all of its
reasonable, direct, actual out-of-pocket costs and expenses incurred in
connection with the collection of the principal amount of this Note, including
reasonable outside attorneys' fees, if this Note is collected by or through an
attorney-at-law or under advice therefrom.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Bridge Loan
Agreement and used herein shall have the meanings given to them in the Bridge
Loan Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
METROMEDIA INTERNATIONAL
TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------
Title: President
--------------------------
