EXHIBIT 9
THIS OBLIGATION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
Amount of US $22,500,000.00
EQUITY LOAN AGREEMENT
This Loan Agreement (hereinafter referred to as the "Agreement") is effective
this 4th day of January, 2005, by and between COLUMBUS NOVA INVESTMENTS VIII
LTD., a company organized and existing under the laws of the Commonwealth of
the Bahamas, with its principal address at Xxxxxxx House, 00 Xxxxxxx Xxxxxx,
X.X. Xxx X-0000, Nassau, Bahamas (hereinafter referred to as the "Borrower"),
and RENOVA INDUSTRIES, a Bahamas company, with its principal address at 00
Xxxxxxx Xxxxxx, Xxxxxxx House, Nassau, Bahamas (hereinafter referred to as the
"Lender").
WHEREAS, the Borrower wishes to borrow the amounts described below on the
terms set forth below; and
WHEREAS, the Lender wishes to lend the amount set forth below on the terms set
forth below and acknowledges that the Borrower is relying to its detriment on
the Lender's agreement to do so; and
WHEREAS, the Lender and the Borrower will, on the date hereof, enter into a
loan agreement in a maximum amount of $28,500,000 (the "Debt Loan Agreement")
for the purposes of making available to the Borrower, from time to time,
sufficient funds to allow the Borrower to make advances to ZAO Comcor-TV
pursuant to a term loan agreement dated 26 August 2004 between the Borrower,
as lender, ZAO Comcor-TV, as borrower, and Moscow Cablecom Corp. and certain
of its subsidiaries, as guarantors.
NOW, THEREFORE, in consideration of the aforementioned reliance and other good
and valuable consideration, the parties hereto, intending to be legally bound,
agree as follows:
1. Upon and subject to the terms and conditions hereof, the Lender agrees to
make available, from time to time, in the form of a credit advance (the
"Credit Advance"), until ten (10) years from the date hereof, the principal
amount of up to TWENTY-TWO MILLION AND FIVE HUNDRED THOUSAND DOLLARS
($22,500,000.00) (the "Principal" or "Loan Amount" or "Maximum Amount").
Notwithstanding the foregoing, from time to time, the Lender may agree, at its
sole discretion and upon request from the Borrower in accordance with Section
2 below, to make available to the Borrower a Credit Advance in excess of the
Maximum Amount on the same terms and conditions as the Credit Advance(s) made
up to the Maximum Amount. Such Credit Advance shall only be used for the sole
purpose of financing the subscription of warrants in Moscow CableCom Corp and
to pay expenses including, but limited to, management fees and related
expenses owed to the Lender by the Borrower.
2. The Borrower may request a Credit Advance by providing the Lender with a
written request in accordance with Section 23 herein for such an advance at
least three (3) business days prior to the date on which the funds are to be
disbursed to the Borrower. Each Advance made by the Lender to the Borrower,
and all payments made on account of principal thereof, shall be recorded by
the Lender and, prior to any permitted transfer hereof, endorsed on Schedule
A, attached hereto, which is part of this Agreement; provided, however, that
the failure to make any such recordation or endorsement shall not affect or in
any way discharge or release the obligations of the Borrower under the
Promissory Note, dated of even date herewith. Thereafter, the Lender shall
deliver the amount of such Credit Advance by wire transfer of immediately
available funds to an account designated by the Borrower. The total amount of
the outstanding, unpaid Credit Advances may not exceed the Maximum Amount,
unless the Lender agrees otherwise in writing pursuant to Section 1 or
otherwise.
3. As a condition to the Lender executing this Agreement, the Borrower shall
execute and deliver to the Lender a promissory note, substantially similar in
form and content to that annexed hereto as Exhibit A (the "Promissory Note")
and made a part hereof. Further, as a condition to the Lender making each
Credit Advance, the Borrower shall execute and deliver to the Lender an
allonge to the Promissory Note, substantially similar in form and content to
Exhibit B, attached hereto (the "Allonge").
4. The Promissory Note and the Allonge(s) shall be governed by the terms of
this Agreement, to the extent there are any inconsistent terms.
5. The Credit Advances do not bear interest.
6. Any portion of the total outstanding principal shall be due and payable to
the Lender in full on January 4, 2015. All payments of the Principal shall be
paid to the Lender by wire transfer to a dollar account specified by the
Lender.
7. The Borrower may, at any time and with the Lender's consent, prepay any
part of the Principal then outstanding.
8. The Borrower shall cause to be kept full and proper books of records and
accounts, in which full, true, and proper entries will be made of all
dealings, business and affairs of the Borrower which in any way affect or
pertain to the operation of the Borrower. The Borrower shall keep its books
and records in the manner conforming to federal income tax principles.
9. Upon five (5) business days notice, the Borrower shall provide the Lender
or any of its duly authorized representatives access, during normal working
hours, to any books, documents, papers and records for the purposes of audit,
examination or evaluation, except to the extent that such materials contain
confidential information. The Borrower further agrees to furnish copies of
such papers and documents to the Lender as it may reasonably require from time
to time.
10. Immediately upon becoming aware of the existence of any Event of Default
as defined in Section 12 herein, or event which with notice, lapse of time, or
both, would become an Event of Default, the Borrower shall provide to the
Lender a notice describing its nature and any action the Borrower is taking
(or proposes to take) in connection therewith.
11. Within forty five (45) days after the last day of the months of March,
June, September and December, the Borrower shall submit to the Lender a
statement of profits and losses and such other information as the Lender shall
reasonably request, for such period. The Borrower shall also submit with such
report a certificate of the President of the Borrower certifying, to the
knowledge of such person, to the absence of any Event of Default or event
which, with notice, the passage of time, or both, would constitute an Event of
Default.
12. An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
12.1 The Borrower defaults in the payment of the Principal or any
portion thereof within three (3) Business Days of the same
becoming due and payable; or
12.2 The Borrower defaults in the performance of or compliance with any
term contained herein, and such default is not remedied within ten
(10) Business Days of notice thereof to the Borrower; or
12.3 Any representation or warranty of the Borrower set forth in
Section 17 herein is breached in any material respect on the date
as of which made and such breach is not remedied within ten (10)
Business Days of notice thereof to the Borrower; or
12.4 The Borrower (a) admits in writing its inability to pay its debts
as they become due; (b) files, or consents by answer or otherwise
to the filing against it, of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy,
for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction; (c) makes an assignment for the benefit of its
creditors; (d) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its
property; or (e) is adjudicated as insolvent or to be liquidated.
13. Upon the happening of an Event of Default, then, unless later waived in
writing by the Lender, the Lender may accelerate the maturity of this Loan,
making the Principal and accrued interest immediately due and payable upon
written notice or demand to or upon the Borrower and may exercise any and all
enforcement remedies authorized at law or equity.
14. If payment hereunder becomes due and payable on a Saturday, Sunday or
legal holiday under the laws of the State of New York, the Commonwealth of the
Bahamas or Switzerland the due date hereof shall be the following business
day. Checks, drafts or similar items of payment received by the Lender shall
not constitute payment to the Lender unless and until such item of payment has
actually been collected by the Lender's depository bank and credited to the
Lender's account, but credit therefor shall be given on the date the same is
actually received by the Lender.
15. Subject to Section 16 herein, the Borrower undertakes that, prior to the
date on which all amounts outstanding hereunder and under the Debt Loan
Agreement have been repaid and all commitments hereunder and under the Debt
Loan Agreement have been cancelled, it will not:
15.1 declare, make or pay any dividend, charge, fee or other
distribution (or interest on any unpaid dividend, charge, fee or
other distribution) (whether in cash or in kind) on or in respect
of its share capital (or any class of its share capital);
15.2 repay or distribute any dividend or share premium reserve; or
15.3 redeem, repurchase, defease, retire or repay any of its share
capital or resolve to do so,
where the proceeds of such payment, repayment, distribution, redemption,
repurchase, defeasance or retirement consists, or is proposed to consist, of
proceeds of a payment, repayment, distribution, redemption, repurchase,
defeasance or retirement on or in respect of the share capital of ZAO
Comcor-TV (or any class of its share capital) (in each case, other than in
favour of the Lender, in its capacity as holder of shares in the Borrower).
16. Nothing in Section 15 herein shall prohibit the Borrower from making any
payment, including (but without limitation) by way of distribution, dividend,
fee charge or otherwise, to any of its shareholders for the purpose of
discharging any liability to tax incurred by such shareholders in connection
with the taxable interest income (net of any deductible expenses) if any
deemed received by or accruing to the Borrower under applicable U.S. Federal
income tax law and the terms of the term loan agreement dated 26 August 2004
between Columbus Nova DF Limited, ZAO Comcor-TV and certain of its
subsidiaries.
17. The Borrower represents and warrants to the Lender as follows:
17.1 The Borrower is a Bahamian company duly organized, validly
existing, in good standing and possessing all powers and authority
to own its property and to conduct the business in which it is
engaged as well as all other rights and privileges generally
granted by its organizational documents and applicable law.
17.2 Upon execution and delivery of this Agreement, the Borrower is not
in violation of, or in default (nor has any event occurred which
with notice, lapse of time, or both, would constitute a violation
or default) in the performance of any obligation, agreement or
condition contained in the organizational documents of the
Borrower or in violation or default of any agreement or instrument
to which the Borrower is a party or by which it may be bound or to
which any of its property or assets are subject, or any law,
order, rule, regulation, writ, authorization, injunction or decree
of any government, governmental instrumentality or court, domestic
or foreign.
17.3 There is not now pending or, to its knowledge, threatened, any
action, suit or proceeding against the Borrower before or by any
court or governmental agency or body, which might result in any
material adverse change in the condition (financial or otherwise),
business, or properties of the Borrower or in its ability to
fulfill its obligations under this Agreement; nor does the
Borrower know of any circumstances which would give rise to any
such action, suit or proceeding.
17.4 There are no consents or approvals required under the laws of the
Bahamas to effect the transactions contemplated by this Agreement.
No other authorization, approval, order, exemption or other action
of any court or governmental body of the Bahamas, or of any state,
country or other jurisdiction thereof is required to effect the
transactions contemplated by this Agreement.
17.5 This Agreement has been duly authorized, executed and delivered by
the Borrower and, upon due acceptance by the Lender, will
constitute the valid and legally binding obligation of the
Borrower enforceable in accordance with its terms against the
Borrower, subject as to enforcement remedies applicable to
bankruptcy, insolvency, moratorium and other laws affecting the
rights of creditors generally and to equitable principles.
17.6 The execution and delivery of this Agreement by the Borrower and
the fulfillment of the terms set forth herein do not violate any
statute, regulation or other law of the Bahamas, the United
States, the State of New York or any other state or jurisdiction
of the United States or any other country, or any valid and
enforceable order, judgment or decree of any court or governmental
body of the United States, or of any country, state or other
jurisdiction thereof.
17.7 The information heretofore furnished by the Borrower to the Lender
in writing does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in the light of the circumstances under which
they are made, not misleading in any material respect. Any
projections, forecasts or similar information, furnished by the
Borrower to the Lender were based on reasonable assumptions and
were prepared in good faith.
18. If payment for any portion of the Principal shall not be made when due,
and any action is brought to enforce collection, the defaulting Borrower
agrees to pay the Lender's reasonable attorneys' fees, in an amount not to
exceed two percent (2%) of the Principal.
19. Whenever in this Agreement reference is made to the Borrower, such
reference shall be deemed to include, as applicable, a reference to the
respective successors and assigns of the Borrower. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of said
successors and assigns. The Borrower's successors and assigns shall include,
without limitation, the Borrower as debtor in possession or a receiver or
trustee of or for the Borrower.
20. This Agreement shall be governed by and construed in accordance with the
laws of England.
21. All disputes arising out of or in connection with the present contract
shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance with
the said Rules.
22. Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
23. All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and sent to address herein above stated or
to such other address as furnished by any party to all other parties hereto in
accordance with this notice provision. All such notices and communications
hereunder shall be effective and deemed given, (a) if sent via facsimile, when
transmitted, as evidenced by a transmission report containing a remote
statement identification and confirmation of the time of such transmission
report containing a remote statement identification and confirmation of the
time of such transmission and the pages sent; (b) if mailed, when received, as
evidenced by the acknowledgment of receipt issued with respect thereto by the
applicable postal authorities; (c) if sent via electronic mail in a manner
consistent with Chapter 96 of Title 15 of the United States Code (the
Electronic Signatures in Global and National Commerce Act); and, (d) if
delivered by hand, when received, as evidenced by the signed acknowledgment of
receipt of the person to whom such notice or communication shall have been
addressed.
24. No provision of this Agreement may be changed or waived orally, but only
by an instrument in writing signed by the party to be charged by such change
or waiver.
25. This Agreement may be executed in more than one separate counterpart, each
of which shall, collectively and separately, constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
Borrower: Lender:
COLUMBUS NOVA INVESTMENTS RENOVA INDUSTRIES LTD.
VIII LTD.
By: /s/ Olivier Chaponnier By: /s/ Xxxxxxx Xxxxxxx
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Name: Olivier Chaponnier Name: Xxxxxxx Xxxxxxx
Title: Director Title: Director
SCHEDULE A
Unpaid
Principal Name of
Amount of Balance of Person Making
Date Loan Principal Payments Note Notation Reason
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