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EXECUTION COPY
EXHIBIT 99.5
AGREEMENT TO EXCHANGE AND CONSENT
AGREEMENT TO EXCHANGE AND CONSENT (the "Agreement"), dated as
of May 18, 1999 by and among Metromedia International Group, Inc., a Delaware
corporation (the "Company"), PLD Telekom Inc., a Delaware corporation ("PLD"),
and each of the Noteholders listed on Schedule I hereto (the "Noteholders").
WITNESSETH
WHEREAS, PLD and the Company are concurrently herewith
entering into an Agreement and Plan of Merger (the "Merger Agreement"), dated
the date hereof, which provides for, among other things, the merger of a wholly
owned subsidiary of the Company with and into PLD with PLD as the surviving
corporation (the "Merger").
WHEREAS, in connection with the Merger and as a condition to
the consummation thereof, the Company proposes (i) to exchange (A) $1,000
accreted amount of its 10.5% Senior Discount Notes due 2007 (the "New Notes")
having terms substantially as set forth in the Summary of Principal Terms
attached as Exhibit A hereto (the "Summary of Terms"), for each $1,000 principal
amount of PLD's outstanding 14.5% Senior Discount Notes due 2004 (the "Senior
Notes"), plus an additional accreted amount of New Notes equal to the amount of
all accrued but unpaid interest on such Senior Notes to the date of exchange,
and (B) $900 accreted amount of New Notes for each $1,000 principal amount of
PLD's outstanding 9% Convertible Subordinated Notes due 2006 (the "Convertible
Notes" and, together with the Senior Notes, the "Old Notes"), plus an additional
accreted amount of New Notes equal to the amount of all accrued but unpaid
interest on such Convertible Notes to the date of exchange, and (ii) to seek the
consent of each of the holders of the Old Notes to (x) certain amendments to the
Indentures (as defined below) pursuant to which the Old Notes were issued and
(y) waivers of certain defaults under the Indentures (clauses (x) and (y) being
collectively referred to as the "Amendments") pursuant to a Second Supplemental
Indenture, Amendment, Consent and Waiver to each of the Indentures, which will
have substantially the terms and provisions specified in the term sheets
attached hereto as Exhibit B (the "Second Supplemental Indentures") (clauses (i)
and (ii) being collectively referred to as the "Exchange Offers");
WHEREAS, it is a condition to the consummation of the Exchange
Offers and the Merger that the holders of at least 95% of each of the Senior
Notes and the Convertible Notes validly tender and not withdraw their Old Notes
and consent to the Amendments, in each case, pursuant to the Exchange Offers;
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WHEREAS, as a condition and inducement to its willingness to
enter into the Merger Agreement, the Company has requested that the Noteholders
agree, and each of the Noteholders has agreed to enter into this Agreement; and
WHEREAS, each of the Noteholders has agreed to direct its
respective nominee to exchange its Old Notes and consent to the Amendments
pursuant to the Exchange Offers.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises, covenants and conditions hereinafter contained, the parties
agree as follows:
1. Agreement to Exchange.
(a) At the Closing (as defined in the Merger Agreement) and
subject only to (i) the simultaneous consummation of the Merger and of the
transactions contemplated by the Note and Warrant Modification Agreement, the
Elite Option Modification Agreement, the Plicom Option Modification Agreement
and the News Letter Agreement (each, as defined in the Merger Agreement)
(collectively, the "Transactions"), each on the economic terms contemplated by
the forms of such agreements attached as exhibits to the Merger Agreement and
(ii) the declaration by the Securities and Exchange Commission (the "SEC") of
the effectiveness of the Exchange Offer Registration Statement (as defined
below) or, alternatively, of the Shelf Registration Statement (as defined below)
if the Company determined under Section 8.1 that the Registered Exchange Offer
(as defined below) is not available or may not be consummated, each Noteholder
hereby agrees to, and to direct its nominee to, exchange all of such
Noteholder's Old Notes listed on Schedule I hereto, together with any other Old
Notes the beneficial ownership (as defined below) of which is acquired by such
Noteholder during the period from and including the date hereof through and
including the date on which this Agreement is terminated pursuant to Section
10.9 hereof (collectively, the "Subject Debentures"), for New Notes with the
terms and provisions specified in the Summary of Terms. For purposes of this
Agreement, "beneficial ownership" or "beneficially owned" shall have the meaning
ascribed to those terms by Section 13 under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"). The New Notes will be issued pursuant to an indenture between the Company
and a Trustee reasonably satisfactory to the Noteholders and will set forth the
Summary of Terms and such other terms and conditions as are reasonably agreed to
by the Company and the Noteholders.
(b) Delivery of the New Notes to each Noteholder under this
Agreement shall be made on the Closing Date (as defined in the Merger
Agreement).
2. Consent. At the Closing and subject only to the simultaneous
consummation of the Merger and of the Transactions, each substantially as
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contemplated by the forms of agreements for such Transactions attached as
exhibits to the Merger Agreement, each Noteholder hereby agrees to consent, and
agrees to cause its nominee as record holder of all Subject Debenture
beneficially owned by it to consent, to the Amendments and to direct each of the
Trustee for the Senior Notes and the Trustee for the Convertible Notes, as the
case may be, to execute and deliver on behalf of the holders of Old Notes each
of the Second Supplemental Indentures pursuant (i) to Section 9.2 of the
Indenture for the Senior Notes, dated as of May 31, 1996, among PLD as issuer,
the Subsidiary Guarantors named therein and The Bank of New York as trustee, as
amended (the "Senior Notes Indenture"), and (ii) Section 9.2 of the Indenture
for the Convertible Notes, dated as of May 31, 1996, among PLD as issuer, the
Subsidiary Guarantors named therein and The Bank of New York as trustee, as
amended (the "Convertible Notes Indenture" and, together with the Senior Notes
Indenture, the "Indentures"), which agreement to consent shall be effective with
respect to all Subject Debentures during the period from and including the date
hereof through and including the date on which this Agreement is terminated
pursuant to Section 10.9 hereof, after which such consent shall expire and no
longer be effective. In addition, each of the Noteholders hereby consents to the
execution by PLD of the Bridge Loan Agreement dated as of the date hereof (the
"Bridge Loan Agreement") between the Company and PLD providing for certain loans
to be made to PLD and to the grant of the security interest to the Company by
PLD contemplated by the Security Agreement dated the date hereof made by PLD in
favor of the Company to secure the advances made under the Bridge Loan
Agreement.
3. Waiver. Pursuant to the Indentures, each Noteholder hereby waives
and agrees to cause its nominee as record holder of all Subject Debentures
beneficially owned by it to waive its right to (i) receive the payment of
interest in cash on the Subject Debentures (including Additional Amounts, if
any, and Special Interest, if any (each as defined in the Indentures)) or demand
the payment of such interest from amounts deposited in the Company Senior Note
Escrow Account (as defined in the Senior Notes Indenture) or the Company
Convertible Note Escrow Account (as defined in the Convertible Notes Indenture)
and (ii) declare or instruct the respective Trustee for each of the Senior Notes
and the Convertible Notes, as the case may be, to declare the occurrence of an
Event of Default (as defined under each of the Indentures), to demand or take
any other action to cause the acceleration of the entire principal amount
represented by the Subject Debentures or take any other action as a result of
such non-payment, in each of (i) and (ii) above, from the date hereof until the
earlier of (x) the termination of this Agreement or (y) the consummation of the
Exchange Offers. The parties hereby agree that this waiver constitutes a waiver
of the time of payment of the interest under the Subject Debentures only and
does not constitute a foreclosure on the right of each Noteholder to receive the
payment when due of interest and principal and other amounts owed to it under
the Subject Debentures at maturity or otherwise.
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4. Representations and Warranties of the Noteholder. Each
Noteholder hereby represents and warrants to the Company that:
4.1 Authority. The Noteholder has all necessary power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Noteholder and the consummation by such
Noteholder of the transactions contemplated hereby have been duly and validly
authorized by its board of directors or other governing body, and no other
proceedings on its part are necessary to authorize this Agreement or to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Noteholder and, assuming the due authorization, execution
and delivery by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against such Noteholder in accordance with its
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies.
4.2 No Conflict.
(a) The execution and delivery of this Agreement
by the Noteholder do not, and the performance of this Agreement by such
Noteholder shall not, (i) conflict with or violate its organizational documents,
(ii) conflict with or violate any agreement, arrangement, law, rule, regulation,
order, judgment or decree to which it is a party or by which it is (or the
Subject Debentures held of record or beneficially owned by it are) bound or
affected or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Subject
Debentures held of record or beneficially owned by such Noteholder pursuant to
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which it is a party or by
which it (or the Subject Debentures held of record or beneficially owned by it)
is bound or affected, except, in the case of clauses (ii) and (iii) of this
Section 4.2, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Noteholder
of its obligations under this Agreement.
(b) The execution and delivery of this Agreement
by the Noteholder do not, and the performance of this Agreement by such
Noteholder shall not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental entity except for applicable
requirements, if any, of the Exchange Act and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the Noteholder of
its obligations under this Agreement.
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4.3 Title to the Old Notes. As of the date hereof, the
Noteholder is the record or beneficial owner of the Old Notes listed on Schedule
I hereto. The Old Notes listed on Schedule I hereto are all the securities of
the Company either held of record or beneficially owned by the Noteholder. The
Noteholder has not appointed or granted any proxy, which appointment or grant is
still effective, with respect to the Old Notes held of record or beneficially
owned by such Noteholder. The Old Notes listed on Schedule I hereto are owned
and all other Subject Debentures will be owned by the Noteholder free and clear
of all security interests, liens, claims, pledges, options, rights of first
refusal, agreement, limitations on the Noteholders voting rights, charges and
other encumbrances of any nature whatsoever (collectively, "Liens"), other than
Liens arising as a result of this Agreement.
4.4 Investment Purpose; QIB Status. The Noteholder is agreeing
to exchange its Subject Debentures and shall receive New Notes under this
Agreement and pursuant to the Exchange Offers for its own account solely for the
purpose of investment and not with a view to, or for offer or sale in connection
with, any distribution of the New Notes in violation of the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"Securities Act"). The Noteholder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the New Notes and is able to bear the economic risk of such
investment. The Noteholder acknowledges that none of the New Notes has been
registered under the Securities Act and that such securities may be sold or
disposed of in the absence of such registration only pursuant to an exemption
from such registration. The Noteholder is a qualified institutional buyer as
defined in Rule 144A under the Securities Act.
5. Representations and Warranties of PLD and the Company. Each of
PLD and the Company hereby represents and warrants to each of the Noteholders
that:
5.1 Authority. Each of PLD and the Company has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each of PLD and the Company and
the consummation by each of PLD and the Company of the transactions contemplated
hereby have been duly and validly authorized by the board of directors or other
governing body of each of PLD and the Company and no other proceedings on its
part are necessary to authorize this Agreement or to consummate such
transactions. This Agreement has been duly and validly executed and delivered by
each of PLD and the Company and, assuming the due authorization, execution and
delivery by the other parties hereto, constitutes its legal, valid and binding
obligation, enforceable against each of PLD and the Company in accordance with
its terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies.
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5.2 No Conflict.
(a) The execution and delivery of this Agreement
by each of PLD and the Company do not, and the performance of this Agreement by
each of PLD and the Company shall not, (i) conflict with or violate its
organizational documents, (ii) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which it is a
party or by which it is bound or affected, except, in the case of clause (ii) of
this Section 5.2, for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent or delay the performance by each of
PLD and the Company of its obligations under this Agreement.
(b) The execution and delivery of this Agreement
by each of PLD and the Company do not, and the performance of this Agreement by
each of PLD and the Company shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
entity except for applicable requirements, if any, of the Exchange Act and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by each of PLD and the Company of its obligations under this
Agreement.
(c) The execution and delivery of this Agreement
by PLD does not, and the performance of this Agreement by PLD shall not result
in any breach of or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which it is a party or by which its assets or properties are bound
or affected, except for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent or delay the performance by PLD of its
obligations under this Agreement.
6. Transfer of Title. Each Noteholder hereby covenants and agrees
that it will not, prior to the termination of this Agreement, either directly or
indirectly, offer or otherwise agree to sell, assign, pledge, hypothecate,
transfer, exchange, or dispose of any Subject Debentures, owned either directly
or indirectly by it or with respect to which each such Noteholder has the power
of disposition, whether now or hereafter acquired, without the prior written
consent of the Company, unless the person or entity to whom Subject Debentures
have been sold, assigned, pledged, hypothecated, transferred, exchanged or
disposed agrees to be bound by this Agreement as if a party hereto. Each
Noteholder hereby agrees and consents to the entry of stop transfer instructions
by the Company or the Trustee, as the case may be, against the transfer of any
Subject Debentures inconsistent with the terms of this Section 6.
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7. Legend. (a) Each Noteholder agrees to the placement on
certificates representing the New Notes to be received by such Noteholder under
this Agreement, of a legend substantially as set forth below, unless the Company
determines otherwise in accordance with an opinion of counsel:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR NON-U.S. JURISDICTION AND MAY NOT BE OFFERED, SOLD, PLEDGED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF SUCH OTHER STATE
OR NON-U.S. JURISDICTIONS. THE HOLDER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS."
(b) In addition to any other legend on certificates
representing the Old Notes, each Noteholder agrees to the placement on
certificates representing the Old Notes of a legend substantially as set forth
below:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN AGREEMENT TO EXCHANGE AND CONSENT, DATED AS OF MAY 18,
1999, AMONG METROMEDIA INTERNATIONAL GROUP, INC. (THE "COMPANY") AND
CERTAIN NOTEHOLDERS LISTED ON SCHEDULE I THERETO COPIES OF WHICH ARE ON
FILE AT THE OFFICES OF THE SECRETARY OF THE COMPANY."
8. Registered Exchange Offer.
8.1 Registration Statement. The Company agrees that on
or prior to the Closing Date (as defined in the Merger Agreement) the Company's
Registration Statement on Form S-4 (or another appropriate form under the
Securities Act) (the "Exchange Offer Registration Statement") with respect to
the proposed offer to the Noteholders (the "Registered Exchange Offer") to issue
and deliver to such Noteholders, in exchange for New Notes received in the
Exchange Offers, a like aggregate principal amount of debt securities of the
Company (such debt securities referred to as the "Exchange Notes") that are
identical in all respects to the New Notes, except for transfer restrictions
relating to the Securities Act, will be declared
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effective by the SEC; provided, however, in the event that the Company
determines that the Registered Exchange Offer is not available or may not be
consummated because it would violate applicable law or applicable
interpretations of the Staff of the SEC, the Company will use its best efforts
to cause to be filed as soon as practicable after such determination a shelf
registration statement (the "Shelf Registration Statement") providing for the
sale by the Noteholders of all of the New Notes and to have such Shelf
Registration Statement declared effective by the SEC; provided further, however,
that no Noteholder shall be entitled to have the New Notes held by it covered by
such Shelf Registration Statement unless such Noteholder furnishes to the
Company in writing the information specified in Items 507 and 508 of
Registration S-K. In the event the Company makes the determination specified in
the preceding sentence, the Company agrees that it shall enter into a
registration rights agreement with the Noteholders, which agreement shall be
reasonably satisfactory in form and substance to such Noteholders and shall
contain representations, covenants and indemnities that shall be no less
favorable to the Noteholders than those currently contained in the Company's
Registration Rights Agreement, dated as of May 18, 1999, with News America
Incorporated and News PLD LLC. The Company further agrees that if the Exchange
Offer Registration Statement is declared effective, it will keep the Exchange
Offer Registration Statement effective for not less than 30 days (or longer if
required by applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Noteholders, it being the objective of the
Registered Exchange Offer that each Noteholder electing to exchange New Notes
for Exchange Notes (assuming, among other things, that such Noteholder (i) is
not an affiliate of the Company, (ii) acquires the Exchange Notes during the
ordinary course of such Noteholder's business and (iii) has no arrangements or
understandings with any person to participate in and does not participate in,
and does not intend to participate in, the distribution of the Exchange Notes)
be permitted to trade such Exchange Notes from and after their receipt without
any limitation or restrictions under the Securities Act. The Exchange Notes will
be issued pursuant to an indenture between the Company and a trustee that is
reasonably satisfactory to the holders of Notes, which indenture will be
identical to (or will be the same indenture as) the indenture for the New Notes,
except for the transfer restrictions under the Securities Act relating to the
New Notes.
8.2 Registered Exchange Offer. In connection with the
Registered Exchange Offer, the Company will:
(a) mail to each Noteholder a copy of the
prospectus forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for
not less than 30 days (or longer, if required by applicable law) after the date
on which notice of the Registered Exchange Offer is mailed to the Noteholders;
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(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
(d) permit Noteholders to withdraw tendered New
Notes at any time prior to the close of business, New York City time, on the
last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all
laws that are applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(a) accept for exchange all New Notes tendered
and not validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to or deposit with the Trustee for
the New Notes for cancellation all New Notes so accepted for exchange; and
(c) cause the Trustee for the New Notes,
promptly to authenticate and deliver to each Noteholder, Exchange Notes with an
equal principal amount to the New Notes of such Noteholder so accepted for
exchange.
8.3 Effectiveness. If the Company is required to file a
Shelf Registration Statement in accordance with Section 8.1, the Company shall
use its reasonable best efforts to keep the Shelf Registration Statement
effective and to amend and supplement the prospectus contained therein in order
to permit such prospectus to be used by all persons subject to the prospectus
delivery requirements of the Securities Act for the period of time specified in
Rule 144(k) or such shorter period of time as all New Notes covered thereby
shall have been sold thereunder.
8.4 Indenture. The indenture for the New Notes or the
indenture for the Exchange Notes, as the case may be, shall provide that the New
Notes and the Exchange Notes shall vote and consent together on all matters as
one class and that none of the New Notes or the Exchange Notes will have the
right to vote or consent as a separate class on any matter.
8.5 Additional Representations. Each Noteholder
participating in the Registered Exchange Offer shall be required to represent to
the Company that at the time of the consummation of the Registered Exchange
Offer (i) any Exchange Notes received by such Noteholder will be acquired in the
ordinary course of such Noteholder's business, (ii) such Noteholder will have no
arrangements or understanding with any person to participate in and is not
participating in, and does not intend to participate in, the distribution of the
New Notes or the Exchange Notes
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within the meaning of the Securities Act and (iii) such Noteholder is not an
affiliate (as defined in Rule 405 under the Securities Act) of the Company.
8.6 Certain Information. The Company may require each
Noteholder to furnish to the Company such information regarding the distribution
of such securities and other matters as may be required to be included in the
Exchange Offer Registration Statement or Shelf Registration Statement and each
such Noteholder shall be obligated to provide any such information for inclusion
in the Exchange Offer Registration Statement or Shelf Registration Statement as
the Company shall reasonably request.
8.7 Notification. The Company shall, as expeditiously as
possible, notify each Noteholder of the happening of any event as a result of
which the prospectus included in the Exchange Offer Registration Statement or
Shelf Registration Statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and prepare and file with the SEC a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Exchange Notes or New Notes, as applicable, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. Each
Noteholder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in this Section 8.7, it shall
forthwith discontinue disposition of Exchange Notes or New Notes, as applicable,
pursuant to the Exchange Offer Registration Statement or Shelf Registration
Statement, as applicable, covering such notes until its receipt of the copies of
the supplemented or amended prospectus and, if so directed by the Company, each
such Noteholder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in its possession, of the
prospectus covering such notes current at the time of receipt of such notice. If
the Company shall give any such notice, the Company shall extend the period
during which such Exchange Offer Registration Statement or Shelf Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice pursuant to this Section 8.7 to and including the date when each
Noteholder shall have received the copies of the supplemented or amended
prospectus.
9. Indemnification; Contribution.
9.1 Indemnification by the Company. The Company agrees to
indemnify to the fullest extent permitted by law, each Noteholder, its officers,
directors and agents and each person, if any, who controls each such Noteholder
(within the meaning of the Securities Act), against any and all losses, claims,
damages, liabilities and expenses caused by any untrue or alleged untrue
statement of
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a material fact contained in the Exchange Offer Registration Statement or Shelf
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, except to the extent, and only to
the extent, the same are caused by or contained in any information with respect
to a Noteholder furnished in writing to the Company by such Noteholder expressly
for use therein or by a Noteholder's failure to deliver a copy of the prospectus
or any amendments or supplements thereto after the Company has furnished such
Noteholder with a sufficient number of copies of the same or by the delivery of
prospectuses by a Noteholder after the Company notified such Noteholder in
writing to discontinue delivery of prospectuses.
9.2 Indemnification by the Noteholder. Each Noteholder
shall furnish to the Company in writing such information and affidavits with
respect to each such Noteholder as the Company reasonably requests for use in
connection with the Exchange Offer Registration Statement, Shelf Registration
Statement or prospectus included therein and agrees to indemnify, severally and
not jointly, to the fullest extent permitted by law, the Company, its officers,
directors and agents and each person, if any, who controls the Company (within
the meaning of the Securities Act) against any and all losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact or any omission or alleged omission of a material fact
required to be stated in the Exchange Offer Registration Statement, Shelf
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue or
alleged untrue statement or omission is caused by or contained in or improperly
omitted from, as the case may be, any information or affidavit with respect to
such Noteholder so furnished in writing by it or by the delivery of prospectuses
by a Noteholder after the Company notified such Noteholder in writing to
discontinue delivery of prospectuses.
9.3 Contribution. If the indemnification provided for in
Section 9 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, to the extent such
indemnification is unavailable, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses. The relative fault of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged
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untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9.3 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person.
If indemnification is available under this Section 9.3, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 9.1 and 9.2 hereof without regard to the relative fault of
said indemnifying parties or indemnified party.
10. Miscellaneous.
10.1 Permission to Disclose. Each Noteholder hereby agrees and
consents to the disclosure by the Company of this Agreement in connection with
the Exchange Offers or as otherwise required by law (except that such
Noteholders name will not be disclosed in any press release, filing or other
notice or report unless required by law or the SEC).
10.2 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
10.3 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Noteholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Company and the Noteholders with respect to the
subject matter hereof.
10.4 Amendment. This Agreement may not be amended and no other
actions may be taken under this Agreement except by an instrument in writing
signed by the Company and each of the holders of the Subject Debentures covered
by this Agreement.
13
13
10.5 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated.
10.6 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to the Noteholders, to the addresses specified on Schedule
I.
With a copy to:
Xxxxxxx Xxxxxxx, Esq.
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Company, to:
Xxxxxx X. Xxxxxx, Esq.
Metromedia International Group, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
14
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with a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to PLD, to:
PLD Telekom Inc.
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
10.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
10.8 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
10.9 Termination. This Agreement shall terminate on the
first to occur of (x) written agreement to terminate of the Company and a
majority in principal amount of the Noteholders (determined as a single class),
(y) termination of the Merger Agreement in accordance with its terms or (z)
October 31, 1999, unless in any such case it is extended by the Company and each
of the Noteholders. Upon termination, this Agreement shall be of no further
force and effect among the parties except for the provisions of Section 10.10
which shall survive the termination of this Agreement.
10.10 Fees and Expenses. Except as otherwise provided in
this Agreement, each party shall bear its own expenses, including the fees and
expenses of accountants, financial or other advisors or representatives engaged
by it, incurred in connection with this Agreement and the transactions
contemplated hereby; provided, however, that the Company shall pay the
reasonable fees and disbursements of one firm of attorneys for all of the
Noteholders.
10.11 Survival of Representations, Warranties, Consents and
Covenants. The consent, representations and warranties contained in or made
pursuant to this Agreement shall survive the Closing without limitation and the
covenants and agreements contained in or made pursuant to this Agreement which
by
15
15
their terms are to survive after the Closing shall survive for the period
specified herein, provided, that if a claim or notice is given with respect to
any representation, warranty, covenant or agreement prior to any such expiration
date, the claim with respect to such representation, warranty, covenant or
agreement shall continue indefinitely until such claim is finally resolved.
10.12 Successors and Assigns. The provisions of this
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors or assigns.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its respective officers thereunto duly authorized all
as of the date first above written.
METROMEDIA INTERNATIONAL GROUP, INC.
By: /s/ XXXXXX XXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer,
Executive Vice President,
Treasurer and Director
PLD TELEKOM INC.
By: /s/ XXXXX X. X. XXXX
---------------------------------------
Name: Xxxxx X. X. Xxxx
Title: Chairman, President and
Chief Executive Officer
XXXXXXX XXXXX GLOBAL ALLOCATION
FUND, INC.
By: /s/ XXXX XXX X'XXXXXXX
---------------------------------------
Name: Xxxx Xxx X'Xxxxxxx
Title: VP MLAM, Authorized Signatory
XXXXXXX XXXXX EQUITY/CONVERTIBLE
SERIES-GLOBAL ALLOCATION PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT,
L.P., AS INVESTMENT ADVISER
By: /s/ XXXX XXX X'XXXXXXX
---------------------------------------
Name: Xxxx Xxx X'Xxxxxxx
Title: VP MLAM, Authorized Signatory
17
17
XXXXXXXXXXX FUNDS, INC. AS INVESTMENT
SUB-ADVISER FOR ATLAS STRATEGIC INCOME
FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
XXXXXXXXXXX CHAMPION INCOME FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXXXXXX HIGH INCOME FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXXXXXX STRATEGIC INCOME FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
FOR THE ACCOUNT OF XXXXXXXXXXX
STRATEGIC BOND FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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18
XXXXXXXXXXX HIGH YIELD FUND
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NORTHSTAR HIGH TOTAL RETURN FUND
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
NORTHSTAR HIGH TOTAL RETURN FUND II
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
HIGH YIELD PORTFOLIO
By: /s/
---------------------------------------
Name:
Title:
TOTAL RETURN PORTFOLIO
By: /s/
---------------------------------------
Name:
Title:
19
19
IDS LIFE SPECIAL INCOME FUND
By: /s/
---------------------------------------
Name:
Title:
IDS LIFE INCOME ADVANTAGE FUND
By: /s/
---------------------------------------
Name:
Title:
GENERAL RETIREMENT SYSTEM OF THE
CITY OF DETROIT
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
BEA INCOME FUND, INC. HIGH YIELD
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
BEA STRATEGIC GLOBAL INCOME FUND,
HIGHYIELD
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
20
20
OMAHA PUBLIC SCHOOL EMPLOYEE
RETIREMENT SYSTEM
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
WARBURG PINCUS HIGH YIELD FUND
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
RJR NABISCO DOMESTIC HIGH YIELD
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
SEI INSTITUTIONAL MANAGED TRUST
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
VAIL
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
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21
THE COMMON FUND
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
NORTHWESTERN UNIVERSITY
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
XXXXXX XXXXX CORP EMPLOYEE
PENSION & SAVINGS PLAN
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
TEXACO INC.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
PHOENIX EMERGING MARKET FUND
By: /s/ XXXXX XXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
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22
PHOENIX MULTI-SECTOR FIXED INCOME FUND
By: /s/ XXXXX XXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
PHOENIX EDGE MULTI-SECTOR FIXED INCOME
FUND
By: /s/ XXXXX XXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
23
23
SCHEDULE I
1. Xxxxxxx Xxxxx Global Allocation Fund, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $74,500,000
Beneficial ownership of Convertible Notes:
Principal amount: $18,700,000
2. Xxxxxxx Xxxxx Equity/Convertible Series: Global Allocation Portfolio
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $1,900,000
Beneficial ownership of Convertible Notes:
Principal amount: $500,000
3. Xxxxxxxxxxx Champion Income Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $3,500,000
Beneficial ownership of Convertible Notes:
Principal amount: $200,000
4. Xxxxxxxxxxx Strategic Income Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $16,650,000
Beneficial ownership of Convertible Notes:
Principal amount: $1,500,000
5. Xxxxxxxxxxx High Yield Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $630,000
24
24
6. Xxxxxxxxxxx High Income Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $170,000
7. Atlas Strategic Income Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $50,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
8. Xxxxxxxxxxx Strategic Bond Fund
Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $300,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
9. Northstar High Total Return Fund
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $7,000,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
10. Northstar High Total Return Fund II
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $2,000,000
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25
11. High Yield Portfolio
IDS Tower 10, X00-000
Xxxxxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $4,000,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
12. Total Return Portfolio
IDS Tower 10, X00-000
Xxxxxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $3,000,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
13. IDS Life Special Income Fund
IDS Tower 10, X00-000
Xxxxxxxxxxx, XX
00000 Beneficial ownership of Senior Notes:
Principal amount: $5,000,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
14. IDS Life Income Advantage Fund
IDS Tower 10, X00-000
Xxxxxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $100,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
15. General Ret System of the City of Detroit
000 X. 00xx Xxxxxx - 00xx
Xxxxxx Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $490,000
Beneficial ownership of Convertible Notes:
Principal amount: $70,000
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26
16. BEA Income Fund, Inc.
High Yield
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $1,610,000
Beneficial ownership of Convertible Notes:
Principal amount: $230,000
17. BEA Strategic Global Income Fund High Yield
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $560,000
Beneficial ownership of Convertible Notes:
Principal amount: $80,000
18. Omaha Public School Employee Ret. System
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $210,000
Beneficial ownership of Convertible Notes:
Principal amount: $30,000
19. Warburg Pincus High Yield Fund
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $1,010,000
Beneficial ownership of Convertible Notes:
Principal amount: $230,000
20. RJR Nabisco Domestic High Yield
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $350,000
Beneficial ownership of Convertible Notes:
Principal amount: $50,000
27
27
21. SEI Institutional Managed Trust
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $830,000
Beneficial ownership of Convertible Notes:
Principal amount: $90,000
22. VAIL
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $1,140,000
Beneficial ownership of Convertible Notes:
Principal amount: $220,000
23. The Common Fund
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $30,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
24. Northwestern University
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $150,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
25. Xxxxxx Xxxxx Corp. Emp. Pen & Savings Plan
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $150,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
28
28
26. Texaco Inc.
000 X. 00xx Xxxxxx - 00xx Xxxxxx
Xxx Xxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $200,000
Beneficial ownership of Convertible Notes:
Principal amount: $--
27. Phoenix Emerging Market Fund
00 Xxxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $600,000
28. Phoenix Multi-Sector Fixed Income Fund
00 Xxxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $600,000
29. Phoenix Edge Multi-Sector Fixed Income Fund
00 Xxxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
Beneficial ownership of Senior Notes:
Principal amount: $--
Beneficial ownership of Convertible Notes:
Principal amount: $600,000
29
29
EXHIBIT A
Term Sheet for New Notes will be attached as Exhibit A.
30
30
EXHIBIT B
The following is a summary of the material provisions of the proposed
amendments and waivers to the Senior Notes Indenture and the Convertible Notes
Indenture. Additional technical or conforming changes will be made to the
Indentures.
I. PROPOSED AMENDMENTS TO THE SENIOR NOTES INDENTURE.
1. Elimination in their entirety of the following Sections from
the Senior Notes Indenture:
o Section 4.4: Corporate existence covenant.
o Section 4.5: Maintenance of property covenant.
o Section 4.9: Limitation on indebtedness covenant.
o Section 4.10: Limitation on issuances of guarantees
by restricted subsidiaries covenant.
o Section 4.11: Limitation on liens covenant.
o Section 4.12: Limitation on sale and leaseback
transactions covenant.
o Section 4.13: Restricted payments covenant.
o Section 4.14: Limitations on dividends and other
payment restrictions affecting restricted
subsidiaries covenant.
o Section 4.15: Limitation on issuance and sale of
preferred stock of restricted subsidiaries covenant.
o Section 4.16: Transactions with affiliates covenant.
o Section 4.17: Restricted and unrestricted
subsidiaries covenant.
o Section 4.18: Limitations on line of business
covenant.
o Section 4.19: Limitation on sales of
telecommunications assets agreements or qualified
investments covenant.
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31
o Section 4.20: Reports covenant.
o Section 4.21: Compliance certificate; notice of
default or event of default covenant.
o Sections 4.24 and 4.26: Certain subsidiaries
covenants.
o Article V: Consolidation, merger, conveyance, lease
or transfer covenant.
2. Amendments to Article XI of the Senior Notes Indenture to
authorize the release of all of the collateral including all
cash held in escrow from the security interest, liens, pledge
and escrow agreements of the Senior Notes Indenture.
3. Waiver of all past defaults arising from the failure to pay
interest on the notes or otherwise.
II. PROPOSED AMENDMENTS TO THE CONVERTIBLE NOTES INDENTURE
1. Elimination in their entirety of the following Sections from
the Convertible Notes Indenture:
o Section 4.4: Corporate existence covenant.
o Section 4.5: Maintenance of property covenant.
o Section 4.9: Limitation on issuances of guarantees by
restricted subsidiaries covenant.
o Section 4.10: Restricted and unrestricted
subsidiaries covenant
o Section 4.11: Reports covenant.
o Section 4.12: Compliance certificate; notice of
default or event of default covenant.
o Sections 4.16 and 4.18: Certain subsidiaries
covenants.
o Article V: Consolidation, merger, conveyance, lease
or transfer covenant.
2. Amendments to Article XI of the Convertible Notes Indenture to
authorize the release of all of the collateral including all
cash held in
32
32
escrow from the security interest, liens, pledge and escrow
agreements of the Convertible Notes Indenture.
3. Waiver of all past defaults arising from the failure to pay
interest on the notes or otherwise.
