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Exhibit 4.36
REVOLVING CREDIT AGREEMENT
between
PLD TELEKOM INC.,
as Borrower,
and
NEWS AMERICA INCORPORATED,
as Lender
Dated as of September 30, 1998
$8,100,000
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS.................................................................... 2
Section 1.1 Definitions..................................................... 2
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITY............................................ 9
Section 2.1 Revolving Loans................................................. 9
Section 2.2 Reimbursement Obligations in Respect of
Guaranteed Borrower Indebtedness................................ 9
Section 2.3 Notice of Borrowing............................................. 11
Section 2.4 Disbursement of Funds........................................... 11
Section 2.5 The Notes....................................................... 11
Section 2.6 Interest........................................................ 11
Section 2.7 Voluntary Prepayments........................................... 12
Section 2.8 Reduction of Loan Commitment.................................... 13
Section 2.9 Method and Place of Payment..................................... 13
Section 2.10 Taxes........................................................... 14
SECTION 3. CONDITIONS PRECEDENT........................................................... 14
Section 3.1 Conditions Precedent to Initial Loans........................... 14
Section 3.2 Conditions Precedent to All Loans............................... 15
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................. 16
Section 4.1 Organization; Qualification..................................... 17
Section 4.2 Capitalization of Borrower...................................... 17
Section 4.3 Authority Relative to this Agreement............................ 17
Section 4.4 Consents and Approvals; No Violation............................ 18
Section 4.5 Reports ....................................................... 18
Section 4.6 Financial Statements............................................ 18
Section 4.7 Undisclosed Liabilities......................................... 19
Section 4.8 Absence of Certain Changes or Events............................ 19
Section 4.9 Legal Proceedings, etc.......................................... 21
Section 4.10 Permits ....................................................... 21
Section 4.11 Margin Regulations.............................................. 21
SECTION 5. AFFIRMATIVE COVENANTS.......................................................... 22
Section 5.1 Information Covenants........................................... 22
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Section 5.2 Officer's Certificate........................................... 25
SECTION 6. NEGATIVE COVENANTS............................................................. 26
Section 6.1 Restriction on Fundamental Changes.............................. 26
Section 6.2 Limitation on Modifications of Certain Documents................ 27
Section 6.3 Changes in Business............................................. 27
SECTION 7. EVENTS OF DEFAULT.............................................................. 27
Section 7.1 Events of Default............................................... 27
Section 7.2 Rights and Remedies............................................. 29
SECTION 8. CONVERSION..................................................................... 30
Section 8.1 Conversion Privilege and Conversion Price....................... 30
Section 8.2 Exercise of Conversion Privileges............................... 30
Section 8.3 Fractions of Shares............................................. 31
Section 8.4 Adjustment of Conversion Price.................................. 31
Section 8.5 Notice of Adjustments of Conversion Price....................... 31
Section 8.6 Company to Reserve Common Stock................................. 31
Section 8.7 Taxes on Conversions............................................ 32
Section 8.8 Covenant as to Common Stock..................................... 32
Section 8.9 Special Conversion Provisions Relating to Potential
Changes in Control of the Borrower.............................. 32
Section 8.10 Investment Intent; Private Placement............................
SECTION 9. REGISTRATION RIGHTS............................................................ 33
SECTION 10. MISCELLANEOUS.................................................................. 34
Section 10.1 Payment of Expenses, Indemnity, etc............................. 34
Section 10.2 Right of Setoff................................................. 35
Section 10.3 Notices......................................................... 35
Section 10.4 Successors and Assigns; Assignments............................. 36
Section 10.5 Amendments and Waivers.......................................... 37
Section 10.6 No Waiver; Remedies Cumulative.................................. 37
Section 10.7 Governing Law; Submission to Jurisdiction....................... 37
Section 10.8 Counterparts.................................................... 38
Section 10.9 Effectiveness................................................... 38
Section 10.10 Headings Descriptive............................................ 38
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Section 10.11 Marshalling; Recapture.......................................... 38
Section 10.12 Severability.................................................... 39
Section 10.13 Survival........................................................ 39
Section 10.14 Limitation of Liability......................................... 39
Section 10.15 Calculations; Computations...................................... 39
Section 10.16 Waiver of Trial by Jury......................................... 40
Section 10.17 Interest Rate Limitation........................................ 40
Exhibit A - Form of Note
Exhibit B - Form of Notice of Conversion Election
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REVOLVING CREDIT AGREEMENT, dated as of September 30, 1998,
among PLD Telekom Inc., a Delaware corporation (the "Borrower"), and News
America Incorporated, a Delaware corporation (the "Lender").
WHEREAS, Lender owns, indirectly, approximately 38% of the
issued and outstanding capital stock of Borrower; and
WHEREAS, Borrower has requested that Lender make available to
it certain short term financing for working capital purposes; and
WHEREAS, Lender is willing to make loans to the Borrower upon
the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and intending to be legally
bound hereby, Borrower and Lender hereby agree as follows:
SECTION 1. DEFINITIONS.
Section 1.1 Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural number the singular.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to (i)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise. The term "Affiliate" shall not
include the Lender or any of its direct or indirect Subsidiaries or Affiliates.
"Agreement" shall mean this Credit Agreement as the same may
from time to time hereafter be modified, supplemented or amended.
"Assignee" shall have the meaning provided in Section 10.4(b).
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"Attributable Indebtedness" means, with respect to any Sale
and Leaseback Transaction of any Person, as at the time of determination, the
greater of (i) the capitalized amount in respect of such transaction that would
appear on the balance sheet of such Person in accordance with GAAP and (ii) the
present value (discounted at a rate consistent with accounting guidelines, as
determined in good faith by such Person) of the payments during the remaining
term of the lease (including any period for which such lease has been extended
or may, at the option of the lessor, be extended) or until the earliest date on
which the lessee may terminate such lease without penalty or upon payment of a
penalty (in which case the rental payments shall include such penalty).
"Bankruptcy Code" shall mean Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, and any successor
statute or statutes.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence of a Loan from the
Lender on a given date.
"Business Day" shall mean any day excluding Saturday, Sunday
and any day which shall be in New York City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
actions to close.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in any Person and any rights (other than Indebtedness convertible into an equity
interest), warrants or options to acquire an equity interest in such Person.
"Capitalized Lease" shall mean (i) any lease of property, real
or personal, the obligations under which are capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries, and (ii) any other such
lease to the extent that the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"Capitalized Lease Obligations" shall mean all obligations of
the Borrower and its Subsidiaries under or in respect of Capitalized Leases.
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"Closing Date" shall have the meaning provided in Section
2.1(a).
"Closing Price" on any Trading Day with respect to the per
share price of any shares of Capital Stock means the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if such shares of Capital Stock are not
listed or admitted to trading on such exchange, on the principal national
securities exchange on which such shares are listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on The
Nasdaq National Market or, if such shares are not listed or admitted to trading
on any national securities exchange or quoted on such auto mated quotation
system but the issuer is a Foreign Issuer (as defined in Rule 3b-4(b) under the
Exchange Act) and the principal securities exchange on which such shares are
listed or admitted to trading is a Designated Offshore Securities Market (as
defined in Rule 902(a) under the Securities Act), the average of the reported
closing bid and asked prices regular way on such principal exchange, or, if such
shares are not listed or admitted to trading on any national securities exchange
or quoted on such automated quotation system and the issuer and principal
securities exchange do not meet such requirements, the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm that is selected from time to time by the Borrower
for that purpose and is reasonably acceptable to the Lender.
"Common Stock" shall mean the Common Stock, par value $0.01
per share, of Borrower, and as the context shall require shall also include any
stock of any class of any other Person which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of such Person and which is not subject
to redemption by such Person.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Default Rate" shall have the meaning provided in Section
2.6(b).
"Disqualified Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchange able), or upon the happening of any event, or otherwise, matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at
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the option of the holder thereof or is exchangeable for Indebtedness at any
time, in whole or in part, on or prior to the date on which the Loans mature.
"Event of Default" shall have the meaning provided in Section
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"Exchange Rate Obligations" means, with respect to any Person,
any currency swap agreements, forward exchange rate agreements, foreign currency
futures or options, exchange rate collar agreements, exchange rate insurance and
other agreements or arrangements, or combination thereof, designed to provide
protection against fluctuations in currency exchange rates.
"Existing Convertible Note Indenture" means the Indenture,
dated as of May 31, 1996, among the Borrower, the Existing Convertible Note
Guarantors (as defined therein), Apropos Investments Ltd, Xxxxxxx X. Xxxxx and
The Bank of New York, as trustee thereunder, relating to the Existing
Convertible Notes, as amended and supplemented from time to time.
"Existing Convertible Notes" means the 9% Convertible
Subordinated Notes due 2006 of the Borrower issued pursuant to the Existing
Convertible Note Indenture.
"Existing Debt Agreements" means the Existing Convertible Note
Indenture, the Existing Senior Note Indenture, the documentation related to the
Revolving Credit Notes, and all ancillary agreements related to any of the
foregoing.
"Existing Senior Note Indenture" means the Indenture, dated as
of May 31, 1996, among the Borrower, the Existing Senior Note Guarantors (as
defined therein), Apropos Investments Ltd, Xxxxxxx X. Xxxxx and The Bank of New
York, as trustee thereunder, relating to the Existing Senior Notes, as amended
and supplemented from time to time.
"Existing Senior Notes" means the 14% Senior Discount Notes
due 2004 of the Borrower issued pursuant to the Existing Senior Note Indenture.
"Final Maturity Date" shall mean the earlier of (a) June 30,
1999 or (b) such time as the Loan Commitment is reduced to zero pursuant to the
terms hereof.
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"GAAP" shall mean United States generally accepted accounting
principles as in effect on the date hereof and consistent with those utilized in
the preparation of the financial statements referred to in Section 5.1.
"Governmental Authority" means (a) the government of the
United States of America or any State or other political subdivision thereof, or
any jurisdiction in which the Borrower or any Subsidiary conducts all or any
part of its business, or which asserts jurisdiction over any property of the
Borrower or any Subsidiary, or (b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to, any such
government.
"Indebtedness" means at any time (without duplication), with
respect to any Person, whether recourse is to all or a portion of the assets of
such Person, and whether or not contingent, (i) any obligation of such Person
for money borrowed, (ii) any obligation of such Person evidenced by bonds,
debentures, notes, guarantees or other similar instruments, including, without
limitation, any such obligations incurred in connection with the acquisition of
Property, assets or businesses, excluding trade accounts payable made in the
ordinary course of business, (iii) any reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) any obligation of such Person issued
or assumed as the deferred purchase price of Property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business, which in either case are not more than 60 days overdue or which are
being contested in good faith) (v) any Capitalized Lease Obligations of such
Person, (vi) the maximum fixed redemption or repurchase price of Disqualified
Stock of such Person and, to the extent held by other Persons, the maximum fixed
redemption or repurchase price of Disqualified Stock of such Person's Restricted
Subsidiaries, at the time of determination, (vii) the notional amount of any
Interest Hedging Obligations or Exchange Rate Obligations of such Person at the
time of determination, (viii) any Attributable Indebtedness with respect to any
Sale and Leaseback Transaction to which such Person is a party and (ix) any
obligation of the type referred to in clauses (i) through (viii) of this
definition of another Person and all and all dividends and distributions of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise. For the purposes of the preceding sentence, the maximum fixed
repurchase price of any Disqualified Stock that does not have a fixed repurchase
price shall be calculate din accordance with the terms of such Disqualified
Stock as if such Disqualified Stock were repurchased on any date on which
Indebtedness shall be required to be determined
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pursuant hereto; provided that if such Disqualified Stock is not then permitted
to be repurchased, the repurchase price shall be the book value of such
Disqualified Stock. The amount of Indebtedness of any Person at any date shall
be the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date.
"Interest" shall have the meaning given in Section 2.6 hereof.
"Interest Conversion Notice" shall have the meaning provided
in Section 8.2.
"Interest Hedging Obligation" means, with respect to any
Person, an obligation of such Person pursuant to any interest rate swap
agreement, interest rate cap, collar or floor agreement or other similar
agreement or arrangement designed to protect against or manage such Person's or
any of its Restricted Subsidiaries' exposure to fluctuations in interest rates.
"Investment" shall mean all investments in and all loans,
advances and extensions of credit to any Person, all stock, notes, bonds, leases
or other securities or evidences of indebtedness of or any capital contribution
to any corporation, partnership, firm, joint venture or other business entity.
"Loan Commitment" means the maximum aggregate amount of
$8,100,000 or such lesser amount to which the Loan Commitment may be reduced in
accordance with Section 2.8.
"Loan Documents" shall mean this Agreement and the Note or
Notes.
"Loan Party" shall mean and include the Borrower and its
Subsidiaries.
"Loans" shall have the meaning provided in 2.1(a).
"Material Adverse Change; Material Adverse Effect; Materially
Adverse" in, on or to, as appropriate, any Person, means a material adverse
change in such Person's business or condition, a material adverse effect on such
Person's business or condition or an event which is materially adverse to such
Person's business or condition; provided that (a) any such term, when used
without reference to a particular Person, shall mean such change in, effect on
or event materially
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adverse to the Borrower and (b) any material impairment of the ability of the
Borrower to pay the principal of or interest on the Note in accordance with the
terms thereof, any material impairment of the ability of the Borrower to perform
its other obligations under the Note or the Loan Documents, or any circumstance
or occurrence which would impair the enforceability as against the Borrower of
this Agreement or the Loan Documents shall in any case be deemed to have
resulted in a material adverse change in, to have a material adverse effect on,
and to be materially adverse to, the Borrower's business or condition.
"Note" and "Notes" shall have the meanings provided in Section
2.5.
"Notice of Borrowing" shall have the meaning provided in
Section 2.3.
"Obligations" shall mean all obligations, liabilities and
Indebtedness of every nature of the Borrower from time to time owing to the
Lender under or in connection with this Agreement or any other Loan Document.
"Payment Date" shall mean the last day of each month.
"Person" shall mean and include any individual, partnership,
joint venture, firm, corporation, association, trust, limited liability company
or other enterprise or any government or political subdivision or agency,
department or instrumentality thereof.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, excluding Capital Stock in any other Person.
"Restricted Subsidiary" means any Subsidiary of the Borrower
that has not been classified as an "Unrestricted Subsidiary."
"Revolving Credit Notes" shall mean the Borrower's 12% Series
A Senior Secured Revolving Credit Notes due 1998 and 12% Series B Revolving
Credit Notes due 1998.
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Restricted Subsidiary of such Person and is
thereafter leased
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back from the purchaser or transferee thereof by such Person or one of its
Restricted Subsidiaries.
"Subsidiary" of any Person shall mean and include (i) any
corporation 50% or more of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person, directly or indirectly through
Subsidiaries, is either a general partner or has a 50% or more equity interest
at the time.
"Trading Day" means, with respect to a securities exchange or
automated quotation system, a day on which such exchange or system is open for a
full day of trading.
"Transactions" shall mean each of the transactions
contemplated by the Loan Documents.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower
that the Borrower has classified as an "Unrestricted Subsidiary," and that has
not been reclassified as a Restricted Subsidiary, pursuant to the terms of the
documentation pursuant to which the Revolving Credit Notes were issued.
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITY.
Section 2.1 Revolving Loans. (a) Subject to and upon the terms
and conditions herein set forth, the Lender agrees, at any time and from time to
time on and after the date hereof (the "Closing Date"), and prior to the Final
Maturity Date, to make revolving loans (collectively, "Loans") to the Borrower,
which Loans shall not at any time exceed in aggregate principal amount at any
time outstanding the Loan Commitment at such time.
(b) Loans may be voluntarily prepaid pursuant to
Section 2.7, and, subject to the other provisions of this Agreement; any amounts
so prepaid may be reborrowed. The Loan Commitment shall expire, and the Loan
shall mature on, the Final Maturity Date, without further action on the part of
the Lender.
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(c) Each Borrowing of Loans under this Section 2.1
shall be in the aggregate minimum amount of the lesser of (i) $1,000,000 or any
integral multiple of $100,000 in excess thereof or (ii) the remaining unborrowed
amount of the Loan Commitment.
Section 2.2 Reimbursement Obligations in Respect of Guaranteed
Borrower Indebtedness. (a) If the Lender or any of its Affiliates shall make,
execute or deliver any guarantee or similar accommodation to any Person in
respect of any Indebtedness of the Borrower ("Guaranteed Borrower
Indebtedness"), whether outstanding as of the Closing Date or thereafter
incurred, Borrower shall, upon the making, execution or delivery of any such
guarantee or similar accommodation, be immediately obligated to reimburse Lender
or any such Affiliate for the full amount of any payments made or other
liability incurred thereunder, which obligation shall be represented by a Note
issued pursuant hereto in the aggregate principal amount of such guarantee or
similar accommodation. If Lender or any such Affiliate shall make any payment or
other disbursement in respect of Guaranteed Borrower Indebtedness, Borrower
shall reimburse Lender or such Affiliate, as the case may be, an amount equal to
such disbursement not later than 12:00 Noon, New York City time, on the date of
such disbursement; provided, however, that Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.3
hereof that such reimbursement be financed with a Loan hereunder in an
equivalent amount (which Loan may be represented by the same Note as represented
the reimbursement obligation under the guarantee or similar accommodation as set
forth above) and, to the extent so financed, the Borrower's obligation to make
such reimbursement shall be discharged and replaced with the resulting Loan. Any
guarantee or similar accommodation in respect of Guaranteed Borrower
Indebtedness shall be issued only to the extent that the sum of the amount of
such guarantee or similar accommodation plus the total amount of outstanding
Loans shall not exceed the aggregate Loan Commitment (it being understood that
(i) neither Lender nor any of its Affiliates shall have any obligation,
commitment, agreement, arrangement or understanding with respect to providing
any guarantee or similar accommodation in an amount in excess of the Loan
Commitment amount hereunder and (ii) the provision by Lender or any of its
Affiliates of any guarantee or similar accommodation shall be in any event
subject to all conditions precedent and other terms and conditions of this
Agreement).
(b) The Borrower's obligation to reimburse payments
and disbursements in respect of Guaranteed Borrower Indebtedness as provided in
this Section 2.2 shall be absolute, unconditional and irrevocable, and shall be
performed
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strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any instrument of guarantee or other accommodation or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under any instrument of guarantee or other accommodation proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Lender or an Affiliate
under any instrument of guarantee or other accommodation of a draft or other
document that does not comply with the terms of such instrument of guarantee or
other accommodation, or (iv) any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the provisions of
this Section 2.2, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrower's obligations hereunder. Neither the
Lender nor any of its Affiliates shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any instrument of
guarantee or other accommodation or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any instrument of guarantee or other accommodation (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Lender. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of the Lender (as finally determined
by a court of competent jurisdiction), the Lender shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of any such instrument of guarantee or other accommodation, the
Lender may, in its sole discretion, make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to make payment upon such documents if
such documents are not in strict compliance with the terms of such instrument of
guarantee or other accommodation.
Section 2.3 Notice of Borrowing. Whenever the Borrower desires
to borrow hereunder, the Borrower's Chief Financial Officer shall give the
Lender's Treasurer, at the Lender's Office, prior to 10:00 A.M., New York City
time, at least two Business Days' prior written notice (each such notice, a
"Notice of Borrowing") of each Loan. Each Notice of Borrowing shall specify (a)
the aggregate principal amount of the requested Loan and (b) the date of
Borrowing (which shall be a Business Day).
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Section 2.4 Disbursement of Funds. On the date specified in
each Notice of Borrowing, the Lender will make available the Loans requested to
be made on such date, in U.S. dollars by wire transfer in immediately available
funds to an account specified in a written instrument signed by the Chief
Financial Officer of Borrower and delivered to the Treasurer of the Lender
together with any Notice of Borrowing.
Section 2.5 The Notes. The Borrower's obligation to pay the
principal of, and interest on, each Loan made hereunder, shall be evidenced by a
promissory note (each a "Note", and collectively the "Notes"), duly executed and
delivered by the Borrower, substantially in the form of Exhibit A hereto in a
principal amount equal to the principal amount of the Loan represented thereby,
with blanks appropriately completed in conformity herewith. Each Note shall (x)
be payable to the order of the Lender, (y) be dated the date of the Loan, and
(z) mature on the Final Maturity Date.
Section 2.6 Interest. (a) The Borrower agrees to pay interest
in respect of the unpaid principal amount of each Loan ("Interest") from the
date of the making of such Loan until such Loan shall be paid in full at a rate
per annum which shall be equal to twenty percent (20%) per annum, such Interest
to be computed on the basis of a 360-day year and the actual number of days
elapsed.
(b) In the event that, and for so long as, any Event
of Default shall have occurred and be continuing, the outstanding principal
amount of all Loans and, to the extent permitted by law, overdue interest in
respect of all Loans, shall bear interest at a rate per annum (the "Default
Rate") equal to twenty-two percent (22%) per annum, computed on the basis of a
360-day year and the actual number of days elapsed; provided that nothing in any
Loan Document shall permit the Lender to receive interest in excess of the
maximum rate of interest permitted by law.
(c) Interest on each Loan shall accrue from and
including the date of the Borrowing thereof to but excluding the date of any
repayment thereof (provided that any Loan borrowed and repaid on the same day
shall accrue one day's interest) and shall be payable on the last Business Day
of each calendar month while any Loan is outstanding unless otherwise specified
in the Note relating to such Loan. Any accrued but otherwise unpaid interest
shall also be payable on the Final Maturity
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Date and concurrently with the amount of each voluntary or mandatory prepayment,
as provided in Sections 2.7 and 2.8 hereof.
(d) In the event that on or after any interest
payment date the Lender elects to convert any accrued and unpaid amount of
interest on any Loan into Common Stock in accordance with the provisions of
Section 8 hereof, the Borrower's obligation to pay Interest on such Loan,
pursuant to this Section 2.6, shall be deemed satisfied by the delivery of
Common Stock upon conversion of such accrued and unpaid interest as therein
provided, to the extent of such conversion. Lender agrees to give Borrower at
least one Business Day's notice of its intent to convert any interest otherwise
due and payable, or to become due and payable, into Common Stock in accordance
with this Agreement.
Section 2.7 Voluntary Prepayments. The Borrower shall have the
right to prepay the Loan represented by each Note in whole or in part from time
to time on the following terms and conditions: (i) the Borrower shall give the
Lender written notice (or telephonic notice promptly confirmed in writing),
which notice shall be irrevocable, of its intent to prepay the Loan, at least 5
Business Days prior to a prepayment, which notice shall specify the date (which
shall be a Business Day) and the amount of such prepayment and (ii) each
prepayment shall be in an aggregate principal amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof.
Section 2.8 Reduction of Loan Commitment. (a) The Borrower
shall have the right at any time to permanently reduce the Loan Commitment
amount by giving written notice to the Lender of the reduced amount (the "New
Loan Commitment"); provided, however that the Borrower shall not reduce the
Loan Commitment below the amount of any Guaranteed Borrower Indebtedness unless
the Borrower makes provision satisfactory to the Lender to unconditionally
release Lender or any of its Affiliates from all liabilities or obligations of
the Lender or any of its Affiliates under such Guaranteed Borrower Indebtedness.
If the Borrower reduces the Loan Commitment amount under this Section 2.8(a),
Borrower shall be immediately obligated to prepay all outstanding Loans in
excess of the New Loan Commitment.
(b) The Lender shall have the right at any time and
from time to time to permanently reduce the Loan Commitment amount by giving
written notice to the Borrower of the New Loan Commitment. If the Lender reduces
the Loan Commitment amount under this Section 2.8(b), Borrower shall be
immediately obligated to prepay all outstanding Loans in excess of the New Loan
Commitment.
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Section 2.9 Method and Place of Payment. (a) Except as
otherwise specifically provided herein, all payments and prepayments under this
Agreement and the Notes shall be made to the Lender not later than 12:00 noon,
New York City time, on the date when due and shall be made in lawful money of
the United States of America by wire transfer in immediately available funds to
ABA No. 000000000 at Citibank, N.A., New York, in favor of News America
Incorporated, Account No. 00000000 or such other account as specified in a
written instrument signed by the Treasurer or a senior vice president of the
Lender and delivered to the Chief Financial Officer of Borrower, and any funds
received by the Lender after such time shall, for all purposes hereof, be deemed
to have been paid on the next succeeding Business Day.
(b) Whenever any payment to be made hereunder or
under the Notes shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
(c) All payments made by the Borrower hereunder and
under any Note shall be made irrespective of, and without any reduction for, any
setoff or counterclaims, including, without limitation, any setoff or
counterclaims arising due to a breach or alleged breach by the Lender or any of
its Subsidiaries or Affiliates of any other agreement to which the Lender or any
of its Subsidiaries or Affiliates and any of the Loan Parties are parties.
Section 2.10 Taxes. All payments made by the Borrower under
this Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding, in the case of the Lender, net income and
franchise taxes imposed on the Lender by the jurisdiction under the laws of
which the Lender is organized or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, deductions,
charges or withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to the Lender hereunder or
under any Note, the amounts so payable to the Lender shall be in creased to the
extent necessary to yield to the Lender (after payment of all Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the specific Note. Whenever any Taxes are
payable
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by the Borrower, as promptly as possible thereafter, the Borrower shall send to
the Lender a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Taxes when
due to the appropriate taxing authority or fails to remit to the Lender the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Lender for any incremental taxes, interest or penalties that may
become payable by the Lender as a result of any such failure. The agreements in
this Section 2.10 shall survive the termination of this Agreement and the
payment of the Notes and all other Obligations.
SECTION 3. CONDITIONS PRECEDENT.
Section 3.1 Conditions Precedent to Initial Loans. The
obligation of the Lender to make its initial Loans is subject to the
satisfaction on the Closing Date of the following conditions precedent:
(a) Loan Documents.
(i) Credit Agreement. The Borrower shall
have executed and delivered this Agreement to the Lender.
(ii) Note. The Borrower shall have executed
and delivered to the Lender the Note in the amount of the initial Loan,
maturity and as otherwise provided herein.
(b) Opinion of Counsel. The Lender shall have
received a legal opinion, dated the Closing Date, from Xxxxx Xxxxxxxx, Esq.,
Senior Vice President, General Counsel and Secretary of the Borrower, in form
reasonably satisfactory to Lender.
(c) Corporate Documents. The Lender shall have
received the Certificate of Incorporation of the Borrower as in effect on the
Closing Date, certified to be true, correct and complete by the Secretary of
State of the State of Delaware.
(d) Certified Resolutions, etc. The Lender shall have
received a certificate of the Secretary or Assistant Secretary of the Borrower
dated the Closing Date certifying (i) the names and true signatures of the
incumbent officers of such Person authorized to sign the applicable Loan
Documents, (ii) the
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By-Laws of such Person as in effect on the Closing Date, (iii) the resolutions
of such Person's Board of Directors approving and authorizing the execution,
delivery and performance of the Loan Documents executed by such Person, and (iv)
that there have been no changes in the Certificate of Incorporation of such
Person since the date of the most recent certification thereof by the
appropriate Secretary of State.
(e) Additional Matters. The Lender shall have
received such other certificates, opinions, documents and instruments relating
to the Transactions as may have been reasonably requested by the Lender, and
all corporate and other proceedings and all other documents (including, without
limitation, all documents referred to herein and not appearing as exhibits
hereto) and all legal matters in connection with the Transactions shall be
satisfactory in form and substance to the Lender.
Section 3.2 Conditions Precedent to All Loans. The obligation
of the Lender to make any Loan (including any initial Loan made on the Closing
Date) is subject to the satisfaction on the date such Loan is made of the
following conditions precedent:
(a) Notes. The Borrower shall have executed and
delivered to the Lender a Note in the amount of the principal amount of the Loan
represented thereby, maturity and as otherwise provided herein.
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on such date either
before or after giving effect to the making of such Loans.
(c) No Material Adverse Change. No event, act or
condition shall have occurred which, in the judgment of the Lender, has had or
could have a Material Adverse Effect, nor shall there have occurred a Material
Adverse Change relating to general business and economic conditions in the
Russian Federation, nor there shall exist in the Russian Federation economic
conditions or regulatory sanctions the effect of which could reasonably be
expected to have a Material Adverse Effect on the ability of the Borrower or any
of its Subsidiaries to exchange the Russian rouble for US dollars, German marks,
French francs, British pounds or Japanese yen.
(d) No Injunction. No law or regulation shall have
been adopted, no order, judgment or decree of any Governmental Authority shall
have
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been issued, and no litigation shall be pending or threatened, which in the
judgment of the Lender would enjoin, prohibit or restrain, or impose or result
in the imposition of any material adverse condition upon, the making or
repayment of the Loans.
(e) No Change in Credit Status. There shall not have
occurred any event or condition (nor shall any such event or condition be likely
to occur) which, in the reasonable opinion of Lender, shall have resulted in, or
shall be likely to result in, (i) a deterioration in the creditworthiness of the
Borrower or any of its Subsidiaries, or (ii) any adverse change in the business,
condition (financial or otherwise), prospects, results of operations, assets or
properties of the Borrower or any of its Subsidiaries.
The acceptance of the proceeds of each Loan shall constitute a
representation and warranty by the Borrower to the Lender that all of the
conditions required to be satisfied under this Section 3 in connection with the
making of such Loan have been satisfied.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender to enter into this Agreement and
to make the Loans, the Borrower makes the following representations and
warranties, which shall survive the execution and delivery of this Agreement and
the Notes and the making of the Loans:
Section 4.1 Qualification. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own, lease, and
operate its proper ties and to carry on its business as now being conducted.
Borrower is duly qualified or licensed to do business as a foreign corporation
and is in good standing in each jurisdiction in which the property owned, leased
or operated by it or the nature of the business conducted by it makes such
qualification necessary. Schedule 4.1 sets forth, as of the date of this
Agreement, each jurisdiction in which Borrower is qualified to do business as a
foreign corporation. Borrower has heretofore delivered to Lender complete and
correct copies of its Certificate of Incorporation and Bylaws as currently in
effect.
Section 4.2 Capitalization of Borrower. Set forth on Schedule
4.2 is the number of shares in the Capital Stock or other equity interests of
Borrower which are issued and outstanding as of the date of this Agreement. All
such shares are
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validly issued, fully paid and nonassessable. Other than this Agreement, or as
set forth in Schedule 4.2, there is no subscription, option, warrant, call,
right, agreement or commitment relating to the issuance, sale, delivery or
transfer by Borrower of any shares of Capital Stock or other equity interest
(including any right of conversion or exchange under any outstanding security or
other instrument). There are no out standing contractual obligations of Borrower
to repurchase, redeem or otherwise acquire any outstanding shares of Capital
Stock or other equity interest of Borrower. There are no restrictions or
limitations contained in the organizational documents of Borrower or in any
contract, agreement, document or other instrument to which Borrower or any
direct or indirect subsidiary is a party or of which Borrower or any direct or
indirect subsidiary is aware that restricts, or purports to restrict, the
ability of Borrower or any of its direct or indirect subsidiaries to enter into
and perform its obligations under the Loan Documents.
Section 4.3 Authority Relative to this Agreement. Borrower has
full corporate power and authority to execute, deliver and perform its
obligations under this Agreement and all ancillary agreements to which it is a
party and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and all ancillary agreements to which
it is a party and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all corporate and shareholder
action, and no other corporate proceedings on the part of Borrower are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby and thereby. The Loan Documents have been duly and validly
executed and delivered by Borrower, and assuming that this Agreement constitutes
a valid and binding agreement of Lender, constitute valid and binding agreements
of Borrower, enforceable against Borrower in accordance with its terms, except
that such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally or general principles of equity.
Section 4.4 Consents and Approvals; No Violation. Except as
set forth in Schedule 4.4, the execution and delivery by Borrower of this
Agreement and each other Loan Document will not (i) conflict with or result in
any breach of any provision of the Certificate of Incorporation or Bylaws, or
similar charter documents, of Borrower, (ii) require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, (iii) result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Borrower is a party or
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by which Borrower or any of its assets may be bound, except for such defaults
(or rights of termination, cancellation or acceleration) as to which requisite
waivers or consents have been obtained, or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Borrower or any of
its assets.
(b) Except for any registration statement filed with
the United States Securities and Exchange Commission (the "SEC") pursuant to
Section 9 hereof, no declaration, filing or registration with, or notice to, or
authorization, consent or approval of any governmental or regulatory body or
authority is necessary for the consummation by Borrower of the transactions
contemplated hereby.
Section 4.5 Reports. Since January 1, 1997, Borrower has,
pursuant to the Securities Act of 1933, as amended (the "Securities Act",) and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed or
caused to be filed with the SEC all material forms, statements, reports and
documents (including all exhibits, amendments and supplements thereto) required
to be filed by it with respect to the business and operations of Borrower under
each of the Securities Act and the Exchange Act and the respective rules and
regulations thereunder, all of which complied in all material respects with all
applicable requirements of the appropriate act and the rules and regulations
thereunder in effect on the date each such report was filed. True and complete
copies of each of such forms, statements, reports and documents, and such
exhibits, have been delivered to Lender.
Section 4.6 Financial Statements. Borrower has previously
furnished to Lender copies of (a) Borrower's audited (i) consolidated balance
sheets as of December 31, in each of the years 1997, 1996 and 1995 and (ii)
related consolidated statements of income and retained earnings and consolidated
changes in financial position of Borrower for the fiscal years then ended,
together with the respective reports thereon of KPMG Peat Marwick LLP and KPMG,
as independent auditors of Borrower for 1997, and 1996 and 1995, respectively;
and (b) Borrower's unaudited (i) consolidated balance sheet as of September 30,
1998 and (ii) related consolidated statements of income and retained earnings
and consolidated changes in financial position. Each of the balance sheets
included in the financial statements referred to in this Section 4.6 (including
the related notes thereto) present fairly the financial information purported to
be set therein as of the dates thereof, and the other related statements
included therein (including the related notes thereto) present fairly the
results of operations and changes in financial position for the periods then
ended, all in conformity with GAAP applied on a consistent basis, except as
otherwise noted therein. For purposes of this Agreement, the audited
consolidated balance sheet of
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Borrower as of December 31, 1997 are hereinafter referred to as the "Borrower's
Balance Sheet".
Section 4.7 Undisclosed Liabilities. Except as set forth in
Schedule 4.7 or in the unaudited balance sheet or the notes thereto as of
September 30, 1998, Borrower does not have any material liability or obligation,
secured or unsecured (whether absolute, accrued, contingent or otherwise, and
whether due or to become due), of a nature required by generally accepted
accounting principles to be reflected in a corporate balance sheet or disclosed
in the notes thereto, which is not accrued or reserved against in the Borrower's
Balance Sheet or disclosed in the notes thereto in accordance with GAAP.
Section 4.8 Absence of Certain Changes or Events. Except as
set forth in Schedule 4.8 or in Borrower's Annual Report on Form 10-K for the
year ended December 31, 1997, or the Borrower's Quarterly Report on Form 10-Q
for the quarterly periods ended March 31, 1998, June 30, 1998 or September 30,
1998, since the date of the Borrower's Balance Sheet there has not been:
(a) any material adverse change in the business,
prospects, operations, properties, assets, liabilities, competition, earnings,
or condition (financial or otherwise) of Borrower, or any failure by Borrower
to pay its debts when due;
(b) any event or condition of any character which
either individually or in the aggregate, might reasonably be expected to have a
material adverse effect on the business, prospects, operations, properties,
assets, liabilities, competition, earnings or condition (financial or
otherwise), of Borrower;
(c) any damage, destruction or loss (regardless of
whether covered by insurance) that might reasonably be expected to have a
material adverse effect on the business, prospects, operation, properties,
assets, liabilities, competition, earnings, or condition (financial or
otherwise), of Borrower;
(d) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock, property, or any
combination of the foregoing) with respect to the capital stock or other equity
interest of Borrower except as specifically provided for in this Agreement;
(e) any increase in the compensation paid, payable or
to become payable by Borrower to its officers, directors or employees (other
than
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increases for employees in the ordinary course of business and consistent with
past practice), any hiring of new officers, directors or employees (other than
hiring of new employees in the ordinary course of business consistent with past
practice) or any increase in any bonus, insurance, pension or other employee
benefit plan, payments or arrangement (including loans) made to, for or with any
officers, directors, or employees (other than increases for employees in the
ordinary course of business and consistent with past practice or other increases
pursuant to written employee benefit plans);
(f) any entry into, material amendment of, or
termination of, any material agreement, material commitment or material
transaction by Borrower, including, without limitation, any (i) merger,
consolidation, share exchange, acquisition or disposition of assets or stock or
any financing transaction or capital expenditure, (ii) indenture, mortgage,
note, agreement or other instrument relating to the borrowing of money (other
than intercompany accounts), (iii) partnership or joint venture agreement, (iv)
material license agreement relating to intellectual property (other than
off-the-shelf software licenses), or (v) agreement to amend its charter or other
organizational documents or any other document, contract, agreement,
arrangement, undertaking or instrument relating to any of the foregoing;
(g) any entry into, material change to the terms or
conditions of termination of, any license, permit, franchise, governmental
approval or decree pursuant to which Borrower provides telephony, data
transmission or other telecommunications services;
(h) any notes or accounts receivable or portions of
notes or accounts receivable written off by Borrower as uncollectible, other
than in the ordinary course of business and consistent with past practice;
(i) any material obligation or material liability
paid (whether absolute, accrued, contingent or otherwise), or any lien or
encumbrance in connection therewith discharged, by Borrower, other than (i) in
the ordinary course of business and consistent with past practice, or (ii)
current liabilities shown on the financial statements and current liabilities
incurred since their date;
(j) any properties or assets, real, personal or
mixed, tangible or intangible, of Borrower mortgaged, pledged or subjected to
any security interest, lien or encumbrance;
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(k) except as specifically provided for in this
Agreement, any sale, assignment, transfer, lease, dividend, distribution or
other disposition of any of property or assets by Borrower, other than sales of
products in the ordinary course of business; or
(l) any agreement, understanding or undertaking to do
any of the foregoing by Borrower.
Section 4.9 Legal Proceedings, etc. Except as set forth in
Schedule 4.9, there are no claims, actions, or proceedings pending or
investigation pending or, to Borrower's knowledge, threatened against or
relating to Borrower before any court, governmental or regulatory authority or
body acting in an adjudicative capacity. Except as set forth in Schedule 4.9,
Borrower is not subject to any out standing judgment, rule, order, writ,
injunction or decree of any court, governmental or regulatory authority.
Section 4.10 Permits. Borrower has all material permits,
licenses, franchises and other governmental authorizations, consents and
approvals (collectively, "Permits") necessary to conduct its business as
presently conducted. Except as set forth in Schedule 4.10, Borrower has not
received any written notification that it is in violation of any of such
Permits, or any law, statute, order, rule, regulation, ordinance or judgment of
any governmental or regulatory body or authority applicable to it. Borrower is
in compliance with all material Permits, laws, statutes, orders, rules,
regulations, ordinances, or judgments of any governmental or regulatory body or
authority applicable to it.
Section 4.11 Margin Regulations. No part of the proceeds of
any Loan will be used by the Borrower to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying any Margin
Stock. Neither the making of any Loan nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of Regulations T, U or X of the
Federal Reserve Board.
SECTION 5. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that on and after the
Closing Date and until the Loan Commitment has terminated and the Obligations
are paid in full:
Section 5.1 Information Covenants. The Borrower will furnish
to the
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Lender:
(a) Quarterly Statements - within 45 days after the
end of each quarterly fiscal period in each fiscal year of the Borrower (other
than the last quarterly fiscal period of each such fiscal year), duplicate
copies of
(i) a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statement of operations,
shareholders equity and changes in financial position of the Borrower
and its Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with such
quarter, in each case setting forth in comparative form the figures for
the corresponding periods in the previous fiscal year, prepared in
accordance with GAAP applicable to quarterly financial statements
generally, and certified by the Chief Financial Officer of the Borrower
as fairly presenting, in all material respects, the financial position
of the companies being reported on and their results of operations and
cash flows, except for the absence of footnotes and changes resulting
from year-end adjustments, provided that delivery within the time
period specified above of the Borrower's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with
the SEC shall be deemed to satisfy the requirements of this Section
5.1;
(b) Annual Statements - within 90 days after the end
of each fiscal year of the Borrower, duplicate copies of
(i) a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such year, and
(ii) consolidated statements of operations,
shareholders' equity and changes in financial position of the Borrower
and its Subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, prepared in
accordance with GAAP, and accompanied by
(A) an opinion thereon of independent certified
public
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accountants of recognized national standing, which opinion shall state that such
financial statements present fairly, in all material respects, the financial
position of the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards, and that
such audit provides a reasonable basis for such opinion in the circumstances,
and
(B) a certificate of such accountants stating that in
making the examination necessary for certification of such financial statements
pursuant to the preceding subclause (A), such accountants have obtained no
knowledge of any Default or Event of Default or, if in the opinion of such
accountants such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof;
provided that the delivery within the time period specified above of the
Borrower's Annual Report on Form 10-K for such fiscal year (together with the
Borrowers annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor
and filed with the SEC, together with the accountant's certificate described in
subclause (B) above, shall be deemed to satisfy the requirements of this Section
5.1(c);
(c) Audit Reports, etc. - promptly (and in any event
within five Business Days) after receipt thereof, copies of all management
letters and reports submitted to the Borrower or any of its Subsidiaries by
independent certified public accountants in connection with any annual, interim
or special audit of the Borrower or any Subsidiary made by such accountants;
(d) SEC and Other Reports - promptly upon their
becoming available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Borrower or any Subsidiary to public securities
holders generally, and (ii) each regular or periodic report, each registration
statement (without exhibits except as expressly requested by the Lender), and
each prospectus and all amendments thereto filed by the Borrower or any
Subsidiary with the SEC and of all press releases and other statements made
available generally by the Borrower or any Subsidiary to the public concerning
developments that are material;
(e) Notice of Default or Event of Default -
immediately (and in any event within 2 Business Days) after the President, Chief
Financial Officer, General Counsel or other senior officer of the Borrower
becomes aware of
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the existence of any Default or Event of Default or that any Person has given
any notice or taken any action with respect to a claimed Default hereunder or
that any Person has given any notice or taken any action with respect to a
claimed default of the type referred to in Section 7.1(c), a written notice
specifying the nature and period of existence thereof and what action the
Borrower is taking or proposes to take with respect thereto;
(f) Notices with Respect to Existing Senior Note
Indenture, Existing Convertible Note Indenture and Revolving Credit Notes -
promptly upon the delivery thereof to the holders of the Existing Senior Notes,
the Existing Convertible Notes, and the Revolving Credit Notes, respectively, or
a trustee or other representative on their behalf, copies of all notices
delivered by the Borrower to such holders, trustee or other representative; and
promptly upon the execution and delivery thereof, true, complete and correct
copies of all amendments and modifications to and waivers under the Existing
Senior Note Indenture, the Existing Convertible Note Indenture, and the
Revolving Credit Notes respectively;
(g) Notices from Governmental Authority - promptly,
and in any event within 5 days of receipt thereof, copies of any notice to the
Borrower or any Subsidiary from any federal, state or foreign Governmental
Authority relating to any order, ruling, statute or other law or regulation that
could reasonably be expected to have a Material Adverse Effect; and
(h) Requested Information - with reasonable
promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or property of the Borrower or
any of its Subsidiaries or relating to the ability of the Borrower to perform
its obligations hereunder and under the Note as from time to time may be
reasonably requested by Lender.
Section 5.2 Officer's Certificate. Each set of financial
statements delivered to the Lender pursuant to Section 5.1(a), Section 5.1(b) or
Section 5.1(c) hereof shall be accompanied by a certificate of the Chief
Financial Officer containing a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Borrower and its
Subsidiaries from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and that such
review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists, specifying the nature and period of
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existence thereof and what action the Borrower shall have taken or proposes to
take with respect thereto.
SECTION 6. NEGATIVE COVENANTS.
The Borrower covenants and agrees that on and after the
Closing Date until the Loan Commitment has terminated, and the Obligations are
paid in full, without the prior written consent of Lender:
Section 6.1 Restriction on Fundamental Changes.
(a) The Borrower shall not, and shall not permit any
of its Subsidiaries to, enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its
business or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or any material part of its business
or property, whether now or hereafter acquired, except as otherwise permitted
under the Existing Senior Notes, the Existing Convertible Notes, and the
Revolving Credit Notes in the forms thereof in effect on the Closing Date;
provided that the Borrower shall not, and shall not permit any of its
Subsidiaries to, take any action pursuant to this Section 6.1(a) without the
prior written consent of Lender.
(b) The Borrower shall not, and shall not permit any
of its Subsidiaries to, (i) acquire by purchase or otherwise any property or
assets of, or stock or other evidence of beneficial ownership of, any Person,
except purchases of inventory, equipment, materials and supplies in the ordinary
course of Borrower's or such Subsidiary's business, (ii) create any Subsidiary
without the written consent of Lender; provided that such consent shall not be
unreasonably withheld, and provided further that such consent, or refusal to
grant such consent, as the case may be, must be communicated to Borrower within
five Business Days of the relevant request by Borrower, or (iii) enter into any
partnership or joint venture.
(c) The Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, (i) make any dividend or other
distribution of any kind whatsoever on the Common Stock of the Borrower
(including without limitation any distribution paid exclusively in Common
Stock), or make any Restricted Payment (as such term is defined in the Existing
Senior Note Indenture) except as permitted by Section 4.13 of the Existing
Senior Note Indenture, (ii) issue to any holders of its Common Stock any rights,
options or warrants entitling the
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holders thereof to subscribe for or purchase any shares of Common Stock or
securities convertible into or exchangeable for Common Stock, other than
pursuant to the Equity Compensation Plan, (iii) reclassify, subdivide or combine
its outstanding shares of Common Stock, (iv) distribute to holders of its Common
Stock evidences of its indebtedness, shares of any class of its Capital Stock,
cash or other assets, or any securities or other instruments representing the
right to buy, or convertible into or exchangeable for, evidences of its
indebtedness, shares of any class of its Capital Stock or cash or any other
assets, (v) issue shares of its Common Stock other than pursuant to the terms of
the Existing Convertible Notes or options or warrants existing as at the date of
this agreement, or (vi) purchase, in the open market or in any
privately-negotiated transaction or otherwise, or make any tender or exchange
offer for, all or any portion of the Common Stock of the Borrower; provided that
the Borrower shall not, and shall not permit any of its Subsidiaries to, take
any action pursuant to paragraphs (i) or (ii) of this Section 6.1(c) without the
prior written consent of Lender.
(d) The Borrower shall not and shall not permit any
of its Subsidiaries to, amend its certificate of incorporation or by-laws or its
accounting policies or reporting practices.
Section 6.2 Limitation on Modifications of Certain Documents.
The Borrower shall not, and shall not permit any of its Subsidiaries to, amend,
modify or waive, or permit the amendment, modification or waiver of, any
provision of any material contracts (including, without limitation, any of the
documentation pursuant to which the Existing Senior Notes, the Existing
Convertible Notes and the Revolving Credit Notes were issued, and any of the
documents ancillary thereto).
Section 6.3 Changes in Business. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any business which is
substantially different from that conducted by the Borrower or such Loan Party,
as the case may be, on the Closing Date.
SECTION 7. EVENTS OF DEFAULT.
Section 7.1 Events of Default. Each of the following events,
acts, occurrences or conditions shall constitute an Event of Default under this
Agreement, regardless of whether such event, act, occurrence or condition is
voluntary or involuntary or results from the operation of law or pursuant to or
as a result of compliance by any Person with any judgment, decree, order, rule
or regulation of any
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court or administrative or governmental body:
(a) Failure to Make Payments. The Borrower shall (i)
default in the payment when due of any principal of the Loans or (ii) default in
the payment when due of any interest on the Loans or in the payment when due of
any other amounts owing hereunder, and in the case of the circumstances
described in this clause (ii), such default shall continue unremedied for three
or more Business Days; provided, however, that in the event that the Lender
elects to convert any amount of principal or interest otherwise due under any of
the Notes into Common Stock in accordance with the provisions of Section 8
hereof, the amount so converted shall be deemed to have been timely paid and the
failure to pay cash in respect thereof shall not constitute a Default or event
of Default hereunder.
(b) Breach of Covenants.
(i) The Borrower shall fail to perform or
observe any agreement, covenant or obligation arising under Sections 5
or 6.
(ii) The Borrower shall fail to perform or
observe any agreement, covenant or obligation arising under this
Agreement (except those described in subsections (a), (b) and (c)(i)
above), and such failure shall continue for 30 days.
(c) Default Under Other Agreements. Any Loan Party
shall default in the payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) of any amount owing in respect of
any Indebtedness (other than the Obligations) in the aggregate principal amount
of $5,000,000 or more; or any Loan Party shall default in the performance or
observance of any obligation or condition with respect to any such Indebtedness
or any other event shall occur or condition exist, if the effect of such
default, event or condition is to accelerate the maturity of any such
Indebtedness or to permit (without regard to any required notice or lapse of
time) the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such Indebtedness, or any such Indebtedness
shall become or be declared to be due and payable prior to its stated maturity
other than as a result of a regularly scheduled payment.
(d) Bankruptcy, etc. (i) Any Loan Party shall
commence a voluntary case concerning itself under the Bankruptcy Code; or (ii)
an involuntary
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case is commenced against any Loan Party and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or (iii) a custodian (as defined in the Bankruptcy Code) is appointed for,
or takes charge of, all or substantially all of the property of any Loan Party
or any Loan Party commences any other proceedings under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to any Loan Party or there is commenced against any Loan Party
any such proceeding which remains undismissed for a period of 60 days; or (iv)
any order of relief or other order approving any such case or proceeding is
entered; or (v) any Loan Party is adjudicated insolvent or bankrupt; or (vi) any
Loan Party suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or (vii) any Loan Party makes a general assignment for the
benefit of creditors; or (viii) any Loan Party shall fail to pay, or shall state
that it is unable to pay, or shall be unable to pay, its debts generally as they
become due; or (ix) any Loan Party shall call a meeting of its creditors with a
view to arranging a composition or adjustment of its debts; or (x) any Loan
Party shall by any act or failure to act consent to, approve of or acquiesce in
any of the foregoing; or (xi) any corporate action is taken by any Loan Party
for the purpose of effecting any of the foregoing.
(e) Judgments. One or more judgments or decrees in an
aggregate amount of $5,000,000 or more shall be entered by a court or courts of
competent jurisdiction against the Loan Parties (other than any judgment as to
which, and only to the extent, a reputable insurance company has acknowledged
coverage of such claim in writing) and (i) any such judgments or decrees shall
not be stayed, discharged, paid, bonded or vacated within 60 days or (ii)
enforcement proceedings shall be commenced by any creditor on any such judgments
or decrees.
Section 7.2 Rights and Remedies. Upon the occurrence of any
Event of Default described in Section 7.1(d), the Loan Commitment shall
automatically and immediately terminate and the unpaid principal amount of and
any and all accrued interest on the Loan and any and all other Obligations shall
automatically become immediately due and payable, with all additional interest
from time to time accrued thereon and without presentation, demand, or protest
or other requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower, and the obligation of the Lender to make any Loan hereunder shall
thereupon terminate; and upon the occurrence and
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during the continuance of any other Event of Default, the Lender may, by written
notice to the Borrower, (i) declare that the Loan Commitment is terminated,
where upon the Loan Commitment and the obligation of the Lender to make any Loan
hereunder shall immediately terminate, and (ii) declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and
all other Obligations to be, and the same shall thereupon be, immediately due
and payable with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by Borrower.
SECTION 8. CONVERSION.
Section 8.1 Conversion Privilege and Conversion Price. Subject
to and upon compliance with the provisions of this Section 8, the Lender, at its
sole option, may, at any time and from time to time, convert (a) each Note or
any portion of the principal amount thereof which equals $1,000 or any integral
multiple thereof, and (b) the amount of accrued and unpaid Interest on the Loan
represented by such Note (including without limitation any overdue Interest
accruing at the Default Rate), into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100 of a share) of Common
Stock, at the Conversion Price, determined as hereinafter provided, in effect at
the time of conversion.
The price at which Common Stock of the Borrower shall be
delivered upon conversion of any Note, or any accrued and unpaid Interest
thereon, (herein called the "Conversion Price"), shall be as specified in such
Note, which Conversion Price shall be subject to adjustment as hereinafter set
forth.
Any certificates evidencing Common Stock issued upon the
conversion of the Note shall bear such legends, including legends reflecting
restrictions on transfer required in order to maintain compliance with the
provisions of the Securities Act, as Borrower shall deem to be necessary or
appropriate.
Section 8.2 Exercise of Conversion Privileges. In order to
exercise the conversion privilege with respect to any amount of principal of any
Note, Lender shall surrender such Note, duly endorsed or assigned to the
Borrower or in blank, at the principal executive offices of the Borrower,
accompanied by written notice to the Borrower in the form provided in the Note
(or such other notice as is reasonably
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acceptable to the Borrower) that the Lender elects to convert such Note or, if
less than the entire principal amount thereof is to be converted, the portion
thereof to be converted. In order to exercise the conversion privilege with
respect to any amount of Interest payable on a Note (including without
limitation any defaulted Interest), the Lender shall give written notice thereof
to the Borrower (an "Interest Conversion Notice"), at the principal executive
offices, that the Lender elects to convert such Interest amount.
Any amount of principal of a Note shall be deemed to have been
converted immediately prior to the close of business on the day of surrender of
such Note for conversion (or, in the case of the conversion of any Interest due
thereon, upon delivery of the relevant Interest Conversion Notice) in accordance
with the foregoing provisions, and at such time the rights of the Lender as a
holder of the Note (or, in the case of conversion of any interest payable on the
Note, the right of Lender to be paid such interest in cash) shall cease, and the
Person or Persons entitled to receive the Common Stock of the Borrower issuable
upon conversion shall be treated for all purposes as the record holder or
holders of such Common Stock as and after such time. As promptly as practicable
on or after conversion date, the Borrower shall issue and shall deliver to the
Lender, at the address specified by the Lender in writing, a certificate or
certificates for the number of full shares of Common Stock of the Borrower
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 8.3.
If the principal amount of a Note is converted in part only,
upon such conversion the Borrower shall execute and deliver to the Lender, at
the expense of the Borrower, a new Note or Notes in aggregate principal amount
equal to the unconverted portion of the principal amount of such Note.
Section 8.3 Fractions of Shares. No fractional share of Common
Stock of the Borrower shall be issued upon conversion of a Note. Instead of any
fractional share of such Common Stock which would otherwise be issuable upon
conversion of such Note (or a portion thereof), or upon the conversion of any
Interest (including defaulted Interest) payable with respect to such Note, the
Borrower shall pay a cash adjustment in respect of such fractional share in an
amount equal to such fraction multiplied by the Closing Price of the Common
Stock at the close of business on the day of conversion (or, if such day is not
a Trading Day, on the Trading Day immediately preceding such day).
Section 8.4 Adjustment of Conversion Price. In the event that
the
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Borrower, with the consent of the Lender, shall take any action of the nature
specified in Section 6.1(c) hereof, the Conversion Price then applicable to any
Note shall be appropriately adjusted in accordance with customary anti-dilution
provisions at least as favorable to the Lender as those set forth in the
Existing Convertible Notes Indenture.
Section 8.5 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price of any Note is adjusted, the Borrower shall
compute the adjusted Conversion Price in accordance with Section 8.4 and shall
prepare a certificate signed by the Chief Financial Officer of the Borrower
setting forth the adjusted Conversion Price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall be mailed
to the Lender.
Section 8.6 Company to Reserve Common Stock. The Borrower
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Common Stock or out of its Common Stock held in
treasury, for the purpose of effecting the conversion of Notes and any accrued
and unpaid Interest thereon, the full number of shares of its Common Stock then
issuable upon the conversion of the entire principal amount of the aggregate
Loan Commitment and all interest that would accrue on such aggregate amount up
to and including the Final Maturity Date.
Section 8.7 Taxes on Conversions. The Borrower will pay any
and all original issuance, transfer, stamp and other similar taxes that may be
payable in respect of the issue or delivery of shares of its Common Stock on
conversion of Notes and any accrued and unpaid Interest thereon pursuant hereto.
The Borrower shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of its
Common Stock in a name other than that of the Lender or other holder of the
Note, portion thereof or interest thereon to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Borrower the amount of any such tax, or has established to the
satisfaction of the Borrower that such tax has been paid.
Section 8.8 Covenant as to Common Stock.
(a) The Borrower covenants that all shares of its
Common Stock which may be issued upon conversion of Notes or any Interest
Payment in respect thereof will upon issue be validly issued, fully paid and
nonassessable.
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(b) The Borrower shall from time to time take all
action necessary so that the Common Stock which may be issued upon conversion of
Notes or any Interest Payment in respect thereof, immediately upon their
issuance (or, if such Common Stock is subject to restrictions on transfer under
the Securities Act, upon their resale pursuant to an effective registration
statement under the Securities Act), will be listed on the principal securities
exchanges, interdealer quotation systems and markets, if any, on which other
shares of Common Stock of the Borrower are then listed or quoted.
Section 8.9 Special Conversion Provisions Relating to
Potential Changes in Control of the Borrower. Notwithstanding any provision of
this Agreement or any of the other Loan Documents to the contrary, in the event
that upon any conversion of any Note, or any portion hereof, or any accrued and
unpaid Interest payable thereon, the issuance of Common Stock of Borrower
pursuant thereto would result in a Change of Control (as such term is defined
pursuant to the Existing Senior Notes Indenture) of Borrower, then Lender shall
have the right to exercise the conversion rights granted hereunder in respect of
such Note or Interest, as the case may be, only with respect to such principal
or Interest amount, as the case may be, as, when converted into Common Stock in
accordance with the provisions hereof at the then current Conversion Price,
would result in the issuance to Lender of the maximum number of shares of Common
Stock as could be issued without such issuance resulting in a Change of Control
(as so defined), and the remainder of the principal or Interest amount otherwise
sought to be converted shall be paid by the Borrower in cash at the Conversion
Price plus the Differential Value Amount (as defined below) per share of Common
Stock into which such remaining principal or Interest amount, as the case may
be, would otherwise then be convertible in accordance with the terms hereof. As
used herein, the term "Differential Value Amount" shall mean the difference (if
positive) between the Conversion Price then in effect and the Closing Price of
the Common Stock on the date specified for such conversion.
Section 8.10 Investment Intent; Private Placement.
(a) The Lender is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in equity securities presenting an investment decision like that
involved in the acquisition of Common Stock upon the conversion of Notes and any
accrued and unpaid Interest thereon pursuant to this Section 8.
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(b) Upon the conversion of any Notes or any Interest
Payment in respect thereof, the Lender will be acquiring Common Stock issued
upon such conversion for investment for its own account only and not with a view
to, or for resale in connection with, any "distribution" thereof within the
meaning of the Securities Act. The Lender has no present intention of selling,
granting any participation in, or otherwise distributing the Common Stock,
except in compliance with the Securities Act or pursuant to an available
exemption thereunder.
(c) The Lender understands that the Common Stock has
not been registered under the Securities Act or registered or qualified under
any state securities law in reliance on specific exemptions therefrom, which
exemptions may depend upon, among other things, the bona fide nature of the
Lender's investment intent as expressed herein. The Lender is familiar with Rule
144 under the Securities Act, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. The Lender further
understands that the certificate(s) representing the Common Stock shall bear the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
SECTION 9. REGISTRATION RIGHTS.
Lender and Borrower agree that, with respect to any and all
shares of Common Stock of the Borrower issued upon conversion of any Note or any
portion thereof, or any Interest payable with respect thereto, Lender shall have
the registration rights provided for in Article VII of that certain Asset
Exchange Agreement, dated April 19, 1998, as subsequently amended, by and
between News America Incorporated, News PLD LLC and PLD Telekom Inc. (the "Asset
Exchange Agreement"), and any and all shares of Common Stock of the Borrower
issued upon conversion of the Notes or any portion thereof, or any interest
payable with respect thereto, shall constitute "Registrable Securities" as
defined therein; provided, however, that for all purposes of such registration
rights (including those arising
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solely under the Asset Exchange Agreement), Section 7.1(a) of the Asset Exchange
Agreement is hereby amended to be and read in its entirety as follows:
"Expenses. PLD shall pay all Registration Expenses in connection with
only two (2) registrations effected in accordance with this Section
7.1; provided, however, that if at or prior to the fifth anniversary of
the date of this Agreement News America, its affiliates and
subsidiaries, and any permitted successors and assigns, collectively
own more than 50% of the aggregate Registrable Securities subject to
this Agreement (such number to take account of any stock splits,
dividends, combinations or other adjustments affecting any of the
Registrable Securities), then the holders of Registrable Securities
shall be entitled to one (1) additional registration effected in
accordance with this Section 7.1 in respect of which PLD shall pay all
Registration Expenses."
SECTION 10. MISCELLANEOUS.
Section 10.1 Payment of Expenses, Indemnity, etc. The Borrower
shall:
(a) pay all reasonable out-of-pocket costs and
expenses of the Lender in connection with the negotiation, preparation,
execution and delivery of the Loan Documents and the documents and instruments
referred to therein (including without limitation the fees, charges and
disbursements of counsel to Lender) and any amendment, waiver or consent
relating to any of the Loan Documents, which costs and expenses shall accrue as
of the Closing Date but shall be payable at such time, if any, as the first Loan
is made;
(b) pay all reasonable out-of-pocket costs and
expenses of the Lender in connection with the preservation of rights under, and
enforcement of, the Loan Documents and the documents and instruments referred to
therein or in connection with any restructuring or rescheduling of the
Obligations (including, without limitation, the reasonable fees and
disbursements of counsel for the Lender);
(c) pay, and hold the Lender harmless from and
against, any and all present and future stamp, excise and other similar taxes
with respect to the foregoing matters and hold the Lender harmless from and
against any and all
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liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to the Lender) to pay such taxes; and
(d) indemnify the Lender, its officers, directors,
employees, representatives and agents (each an "Indemnitee") from, and hold
each of them harmless against, any and all losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitee in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto) that may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, asserted against or incurred by any Indemnitee
as a result of, or arising out of, or in any way related to or by reason of, any
of the Transactions or the execution, delivery or performance of any Loan
Document.
Section 10.2 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, the Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to any
Loan Party or to any other Person, any such notice being hereby expressly
waived, to set off any other indebtedness or other obligation at any time held
or owing by the Lender to or for the credit or the account of any Loan Party
against and on account of the Obligations of the Loan Parties to the Lender
under this Agreement or under any of the other Loan Documents, and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Loan Document, irrespective of whether or not the Lender
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
Section 10.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery to the party to be notified, on the next Business Day after
delivery to a recognized overnight courier service, upon confirmation of receipt
of a facsimile transmission, or five days after deposit with the United States
Post Office, by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice; provided that notices of a change
of address shall be effective only upon receipt thereof):
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If to Borrower, to:
PLD Telekom Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
If to Lender, to:
News America Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq., General Counsel
(with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.)
Section 10.4 Successors and Assigns; Assignments.
(a) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Lender, all future
holders of the Notes and their respective successors and assigns, except 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.
(b) Assignments. The Lender may, in accordance with
applicable law, at any time assign to any other Person (each an "Assignee") all
or any part of its rights and obligations under this Agreement, the Notes and
any other Loan Documents. The Borrower and the Lender agree that to the extent
of any assignment the Assignee shall be deemed to have the same rights and
benefits under the Loan
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Documents as the Lender hereunder; provided that if the Assignee is an Affiliate
of the Lender, the Borrower shall be entitled to continue to deal solely and
directly with the Lender in connection with the interests so assigned to the
Assignee.
(c) Disclosure of Information. The Borrower
authorizes the Lender to disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee any and all financial and other
information in the Lender's possession concerning the Borrower which has been
delivered to the Lender by the Borrower pursuant to this Agreement or which has
been delivered to the Lender by the Borrower in connection with the Lender's
credit evaluation of the Borrower prior to entering into this Agreement.
Section 10.5 Amendments and Waivers. Neither this Agreement,
any other Loan Document to which the Borrower is a party nor any terms hereof or
thereof may be amended, supplemented, modified or waived except in accordance
with the provisions of this Section. The Lender and the Borrower may, from time
to time, enter into written amendments, supplements, modifications or waivers
for the purpose of adding, deleting, changing or waiving any provisions to this
Agreement or any Note. Any such amendment, supplement, modification or waiver
shall apply to and shall be binding upon the Borrower, the Lender and all future
holders of such Note or any portion thereof or participation therein. In the
case of any waiver, the Borrower and the Lender shall be restored to their
former position and rights hereunder and under the outstanding Notes, 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.
Section 10.6 No Waiver; Remedies Cumulative. No failure or
delay on the part of the Lender or any subsequent holder of a Note in exercising
any right, power or privilege hereunder or under any other Loan Document and no
course of dealing between any Loan Party and the Lender or the subsequent holder
of any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Loan
Document preclude any other or further exercise thereof of the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which the Lender or the subsequent holder of any Note would otherwise
have. No notice to or demand on any Loan Party in any case shall entitle any
Loan Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the
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Lender or the subsequent holder of any Note to any other or further action in
any circumstances without notice or demand.
Section 10.7 Governing Law; Submission to Jurisdiction. (a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to
this Agreement or any other Loan Document and any action for enforcement of any
judgment in respect thereof may be brought in the courts of the State of New
York or of the United States of America for the District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, the Borrower at its
address set forth opposite its signature below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Lender or any holder of a Note to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Borrower in any other jurisdiction.
Section 10.8 Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
Section 10.9 Effectiveness. This Agreement shall become
effective on the date on which the Lender and the Borrower shall have each
signed a counter part hereof and the Borrower shall have delivered the same to
the Lender.
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Section 10.10 Headings Descriptive. The headings of the
several Sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
Section 10.11 Marshalling; Recapture. The Lender shall be
under no obligation to xxxxxxxx any assets in favor of any Loan Party or any
other party or against or in payment of any or all of the Obligations. To the
extent the Lender receives any payment by or on behalf of any Loan Party, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to such Loan
Party or its estate, trustee, receiver, custodian or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the obligation or part thereof which has
been paid, reduced or satisfied by the amount so repaid shall be reinstated by
the amount so repaid and shall be included within the liabilities of such Loan
Party to the Lender as of the date such initial payment, reduction or
satisfaction occurred.
Section 10.12 Severability. In case any provision in or
obligation under this Agreement or any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.13 Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the Notes and the
making and repayment of the Loans hereunder.
Section 10.14 Limitation of Liability. No claim may be made by
any Loan Party or any other Person against the Lender or any of its Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any act, omission or event occurring in
connection herewith; and each Loan Party hereby waives, releases and agrees not
to xxx upon any claim for any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
Section 10.15 Calculations; Computations. The financial
statements to be furnished to the Lender pursuant hereto shall be made and
prepared in accor-
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dance with GAAP consistently applied throughout the periods involved and
consistent with GAAP as used in the preparation of the financial statements
referred to in Section 6.1
Section 10.16 Waiver of Trial by Jury. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
Section 10.17 Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the Interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the Interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 10.17 shall be cumulated and the
Interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount shall have been received by Lender.
41
45
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
PLD TELEKOM INC.
By: /s/ E. XXXXX XXXXXXXX
----------------------------
Name: E. Xxxxx Xxxxxxxx
Title: S.V.P.
NEWS AMERICA INCORPORATED
By:
----------------------------
Name:
Title:
42
46
EXHIBIT A
[FORM OF PROMISSORY NOTE]
PLD TELEKOM INC.
PROMISSORY NOTE
$[ ] New York, New York
No.: [Date]
FOR VALUE RECEIVED, the undersigned, PLD TELEKOM INC., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
News America Incorporated, or registered assigns (the "Lender"), on
[_______________ ], in lawful money of the United States of America and in
immediately available funds, the principal amount of [ ] or,
if less, the aggregate amount outstanding of the Loans (as defined in the Credit
Agreement referred to below). The Borrower hereby unconditionally further agrees
to pay interest in like money on the unpaid principal amount hereof from time to
time from the date hereof at the rates and on the dates specified in Section 2.6
of the Revolving Credit Agreement dated as of September 30, 1998 between the
Borrower and the Lender (as amended, modified or supplemented from time to time,
the "Credit Agreement").
This Note is one of the Notes referred to in Section [ ] of the Credit Agreement
and is entitled to the benefits thereof. All of the terms, conditions, and
covenants of the Credit Agreement are expressly made a part of this Note by
reference in the same manner and with the same effect as if set forth herein.
This Note is a registered Note and, as provided in the Credit Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for like principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Borrower
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the
Borrower will not be affected by any notice to the contrary. Any transferee of
this Note, by its acceptance hereof, agrees to be bound by all the terms,
conditions and covenants of the Credit Agreement applicable to the holder of a
Note.
47
The principal amount of this Note, together with all accrued and unpaid interest
thereon, is convertible into Common Stock of the Borrower at any time and from
time to time, as, and subject to the conditions and limitations, specified in
the Credit Agreement. The Conversion Price applicable to this Note and any
accrued and unpaid Interest hereon shall be $[ ], which Conversion Price shall
be subject to adjustment as set forth in the Credit Agreement.
As provided in the Credit Agreement, the Loans evidenced by this Note are
subject to optional and mandatory repayments, in whole and in part, all as
specified in the Credit Agreement.
If an Event of Default, as defined in the Credit Agreement, occurs and is
continuing, all amounts remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
PLD TELEKOM INC.
By: ___________________________
Name:
Title:
2
48
SCHEDULE OF PRINCIPAL ADVANCES, CONVERSIONS AND REPAYMENTS
--------------------------------------------------------------------------------
Principal
Amount of Amount of Amount Interest
Amount of Interest Principal Converted into Converted into
Date Principal Advance Payment Repayment Common Stock Common Stock
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3
49
EXHIBIT B
To: PLD TELEKOM INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NOTICE OF CONVERSION ELECTION
Reference is hereby made to that certain Credit Agreement,
dated as of September 30, 1998, by and between News America Incorporated and PLD
Telekom Inc.
The undersigned hereby exercises its rights to convert the
Note, or a portion thereof, or interest payable with respect thereto, into
Common Stock of PLD Telekom Inc., as provided in the Credit Agreement, and
requests that certificates representing shares of PLD Telekom Inc. Common Stock
issuable upon such conversion be issued in the name of, and delivered to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print Name, Address, and Social Security Number)
and, if conversion shall not be with respect to the entire principal amount of
the Note, that a new Note for the principal balance remaining of the Note issued
and registered in the name of, and delivered to, the undersigned at the address
stated below.
Principal Amount To Be Converted $
Interest Amount To Be Converted $
Date: Name
----------------------------
(Print)
Address:
------------------------------------------------------------------------
----------------------------
(Signature)
