Exhibit 10.52
LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement") is entered into as of this
31st day of March, 1998, by and between XXXX X. XXXXX, as borrower
("Borrower"), and NATIONAL MEDIA CORPORATION, a Delaware corporation, as
lender ("Lender").
RECITALS
18.1 Borrower desires to borrow up to Five Hundred Forty Five Thousand
Dollars ($545,000.00) from Lender.
18.2 Borrower has agreed to pledge the [Three Hundred Thirty Nine
Thousand Seven Hundred Eighty Four (339,784)] shares of Lender common stock, par
value $0.01, and certain related interests, owned by Borrower (the "Common
Stock") to Lender to secure the obligations of Borrower under this Agreement and
the other Loan Documents (as defined below).
18.3 Lender is willing to lend Borrower Five Hundred Forty Five
Thousand Dollars ($545,000.00) on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
(a) Loan Disbursement. Subject to the terms and conditions of this
Agreement, Lender will make a loan or loans (individually, a "Loan," and
collectively, the "Loans") to Borrower in a principal amount up to Five Hundred
Forty Five Thousand Dollars ($545,000.00) to be evidenced by a secured
promissory note (the "Note") in the form of Exhibit A. Borrower hereby requests
a Loan in the amount of Five Hundred Forty Five Thousand Dollars ($545,000.00)
(b) Conditions Precedent.
(a) Conditions to Loan. Lender's obligation to make the Loan
is subject to the fulfillment of each of the following conditions:
(i) Each of the conditions section forth in
Section 2(b) shall be satisfied as of the date of the funding of the Loan.
(ii) Lender shall have received the following
documents (collectively, the "Loan Documents") fully executed and acknowledged,
where applicable, and in form and substance satisfactory to Lender: (A) this
Agreement; (B) the Note; (C) that certain Pledge Agreement (the "Pledge
Agreement") dated as of the date hereof by and between Lender and Borrower, in
the form attached hereto as Exhibit B; and (D) such other documents as Lender
shall reasonably request in connection with the other Loan Documents.
(b) Conditions to All Loans. Lender's obligation to make any
Loan is subject to the fulfillment of each of the following conditions:
(i) Each of the representations and warranties
of Borrower contained in this Agreement and in the other Loan Documents shall be
true in all material respects as of the date of the making of such Loan.
(ii) No Event of Default (as defined herein) or an
event that with the giving of
notice or the passage of time or both would constitute an Event of Default
has occurred and is continuing.
(iii) The funding of such Loan by Lender does not
violate any agreement, indenture,
mortgage, deed of trust, instrument or other document to which Lender or by
which Lender or any of its properties may be bound or affected.
(c) Representations and Warranties. In order to induce Lender to make
the Loan, Borrower represents and warrants as follows:
(a) Each of the Loan Documents constitutes the legal, valid
and binding obligation of Borrower enforceable against Borrower in accordance
with its terms; and
(b) Neither the execution and delivery of any of the Loan
Documents by Borrower nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof will result in a breach of
any of the terms or provisions of, or constitute a default under, or constitute
an event which with notice or lapse of time or both will result in a breach of
or constitute a default under, any agreement, indenture, mortgage, deed of
trust, instrument or other document to which Borrower is a party or conflict
with any law, order, rule or regulation applicable to Borrower of any court or
any federal or state government, regulatory body or administrative agency, or
any other governmental body having jurisdiction over Borrower or its properties.
(d) Covenants. Borrower covenants and agrees that promptly upon the
occurrence of an Event of Default or event that with the giving of notice or the
passage of time or both would constitute an Event of Default, Borrower shall
notify Lender of such event.
(e) Prepayment. The Loan may be prepaid without premium or penalty.
(f) Defaults. Upon the occurrence of any of the following events (each
an "Event of Default"):
(a) Borrower shall fail to make any payment required under any
of the Loan Documents on or before the date such payment is due.
(b) Any representation or warranty made by Borrower in any of
the Loan Documents or which is contained in any certificate, document, financial
or other written statement furnished at any time pursuant thereto shall prove to
have been untrue, incorrect or misleading in any material respect when made.
(c) Borrower shall fail duly to observe or perform any
covenant or agreement contained in the Loan Documents.
(d) Borrower commences or proposes to commence any bankruptcy,
reorganization or insolvency proceeding, or other proceeding under any federal,
state or other law for the relief of debtors.
(e) Borrower fails to obtain the dismissal, within thirty (30)
days after the commencement thereof, of any bankruptcy, reorganization or
insolvency proceeding, or other proceeding under any law for the relief of
debtors, instituted by one or more third parties, fails actively to oppose any
such proceeding, or, in any such proceeding, defaults or files an answer
admitting the material allegations upon which the proceeding was based or
alleges its willingness to have an order for relief entered or its desire to
seek liquidation, reorganization or adjustment of its debts.
(f) Any receiver, trustee or custodian is appointed to take
possession of all or any substantial portion of the assets of Borrower, or any
committee of Borrower's creditors, or any class thereof, is formed for the
purpose of monitoring or investigating the financial affairs of Borrower or
enforcing such creditors' rights.
then, on notice of acceleration by Lender to Borrower in the case of an Event of
Default specified in subsections (a) through (c) above, and Borrower's failure
to cure such Event of Default within a reasonable period of time after
notification thereof (or automatically and immediately without demand, notice,
protest or other action of any kind by Lender, which Borrower hereby expressly
waives, in the case of an Event of Default specified in subsections (d)
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through (f) above), all amounts outstanding hereunder and under each of the Loan
Documents shall be immediately due and payable in full.
(g) Waiver and Release by Borrower. To the maximum extent permitted by
applicable Laws, Borrower hereby:
(a) Waives: (i) protest of all commercial paper at any time
held by Lender on which Borrower is in any way liable; and (ii) except as
otherwise set forth herein or in the Loan Documents, notice and opportunity to
be heard, after acceleration in the manner provided in Section 6 before exercise
by Lender of the remedies of self-help, set-off, or of other summary procedures
permitted by any applicable Laws or by any agreement with Borrower and, except
where required hereby or by any applicable Laws, notice of any other action
taken by Lender; and
(b) Releases Lender and its officers, attorneys, agents and
employees from all claims for loss or damage caused by any act or omission on
the part of any of them.
(h) Indemnification.
(a) Borrower hereby indemnifies and agrees to protect, defend
and hold harmless Lender, Lender's Affiliates and any member, officer, director,
official, agent, employee or attorney of Lender or Lender's Affiliates and their
respective heirs, administrators, executors, successors and assigns
(collectively, the "Indemnified Parties"), from and against any and all losses,
damages, expenses or liabilities of any kind or nature and from any suits,
claims or demands, including reasonable attorneys' fees incurred in
investigating or defending such claim, suffered by any of them and caused by,
relating to, arising out of, resulting from, or in any way connected with this
Agreement, the Note or the Loan Documents or the transactions contemplated
therein (unless determined by a final judgment of a court of competent
jurisdiction to have been caused by the gross negligence or willful misconduct
of the Indemnified Parties) including, without limitation: (i) any untrue
statement of a material fact contained in information submitted to Lender by
Borrower or the omission of any material fact necessary to be stated therein in
order to make such statement not misleading or incomplete; and (ii) the failure
of Borrower to perform any obligations herein required to be performed by
Borrower.
(b) In case any action shall be brought against Lender or any
other Indemnified Party in respect to which indemnity may be sought against
Borrower, Lender or such other Indemnified Party shall promptly notify Borrower
and Borrower shall assume the defense thereof, including the employment of
counsel selected by Borrower and satisfactory to Lender, the payment of all
costs and expenses and the right to negotiate and consent to settlement. The
failure of Lender to so notify Borrower shall not relieve Borrower of any
liability it may have under the foregoing indemnification provisions or from any
liability which it may otherwise have to Lender or any of the other Indemnified
Parties. Lender shall have the right, at its sole option, to employ separate
counsel in any such action and to participate in the defense thereof, all at
Borrower's joint and several cost and expense. Borrower shall not be liable for
any settlement of any such action effected without its consent (unless Borrower
fails to defend such claim), but if settled with Borrower's consent, or if there
be a final judgment for the claimant in any such action, Borrower agrees to
indemnify and save harmless Lender from and against any loss or liability by
reason of such settlement or judgment.
(c) The provisions of this Section 8 shall survive the
repayment or other satisfaction of the obligations.
(i) Warrant of Attorney. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD UPON OR AFTER THE
OCCURRENCE AND DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST BORROWER, (A) FOR SUCH SUMS AS ARE DUE AND/OR MAY
BECOME DUE ON THE BORROWER'S OBLIGATIONS, AND/OR (B) IN ANY ACTION OF REPLEVIN
INSTITUTED BY LENDER TO OBTAIN POSSESSION OF ANY COLLATERAL OR OTHER COLLATERAL
SECURITY FOR THE OBLIGATIONS OF BORROWER TO LENDER, IN EITHER CASE WITH OR
WITHOUT DECLARATION, WITH COSTS OF SUIT,
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WITHOUT STAY OF EXECUTION AND WITH FIVE (5%) PERCENT OF THE PRINCIPAL AMOUNT
THEREOF, BUT NOT LESS THAN FIVE THOUSAND ($5,000.00) DOLLARS, ADDED FOR LIEN
PRIORITY PURPOSES WITH ACTUAL ATTORNEY'S FEES GOVERNED BY SECTION [12(a)]
HEREOF. BORROWER UNCONDITIONALLY AND IRREVOCABLY: (A) WAIVES THE RIGHT OF
INQUISITION ON ANY REAL ESTATE LEVIED ON, VOLUNTARILY CONDEMNS THE SAME,
AUTHORIZES THE PROTHONOTARY OR CLERK TO ENTER UPON THE WRIT OF EXECUTION SAID
VOLUNTARY CONDEMNATION AND AGREES THAT SAID REAL ESTATE MAY BE SOLD ON A WRIT OF
EXECUTION; (B) WAIVES AND RELEASES ALL RELIEF FROM ALL REDEMPTION, APPRAISEMENT,
STAY, EXEMPTION OR APPEAL LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED;
AND (C) RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS AGREEMENT,
VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF LENDER SHALL HAVE BEEN FILED IN SUCH
ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS AGREEMENT AS A
WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT
AGAINST BORROWER SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF, AND THE
SAME MAY BE EXERCISED, FROM TIME TO TIME, AS OFTEN AS LENDER SHALL DEEM
NECESSARY AND DESIRABLE, AND THIS AGREEMENT SHALL BE A SUFFICIENT WARRANT
THEREFORE. LENDER MAY ENTER ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT
COUNTIES FOR ALL OR PART OF THE BORROWER'S OBLIGATIONS, WITHOUT REGARD TO
WHETHER JUDGMENT HAS BEEN ENTERED ON MORE THAN ONE OCCASION FOR THE SAME
BORROWER'S OBLIGATIONS. IN THE EVENT ANY JUDGMENT ENTERED AGAINST BORROWER
HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR ON BORROWER'S BEHALF FOR
ANY REASON WHATSOEVER, LENDER IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR
FOR AND CONFESS JUDGMENT AGAINST BORROWER; SUBJECT, HOWEVER, TO THE LIMITATION
THAT SUCH SUBSEQUENT ENTRY OR ENTRIES OF JUDGMENT BY LENDER MAY ONLY BE DONE TO
CURE ANY ERRORS IN PRIOR PROCEEDINGS, ONLY AND TO THE EXTENT THAT SUCH ERRORS
ARE SUBJECT TO CURE IN THE LATER PROCEEDINGS.
(j) Waiver of Jury Trial. IN ANY LITIGATION ARISING OUT OF OR RELATING
TO THE LOANS OR ANY OF THE OTHER OBLIGATIONS IN WHICH BORROWER AND LENDER ARE
ADVERSE PARTIES, BORROWER AND LENDER HEREBY WAIVE TRIAL BY JURY.
(k) Jurisdiction. In any litigation arising out of or relating to the
Loans or any of the other Obligations, Borrower hereby consents to the personal
jurisdiction of the State and/or Federal courts of the Commonwealth of
Pennsylvania.
(l) Miscellaneous.
(a) Borrower agrees to pay on demand all costs and expenses,
including legal fees, incurred or paid by Lender in preparing, executing or
amending this Agreement and any of the other Loan Documents, and in exercising
its rights and remedies or protecting its interests hereunder.
(b) All notices, requests and other communications required or
permitted to be made hereunder shall, except as otherwise provided, be in
writing and may be delivered personally or sent by telegram, telecopy, telex or
certified mail, postage prepaid, addressed as follows:
To Lender: National Media Corporation
Suite 1100, 0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone number: (000) 000-0000
Telecopy number: (000) 000-0000
To Borrower: Xxxx X. Xxxxx
La Tour Wilshire
4
00000 Xxxxxxxx Xxxxxxxxx, Xx. 000
Xxxxxxx Xxxxx, XX 00000
Telephone number: (000) 000-0000
Telecopy number: (000) 000-0000
Such notices, requests and other communications sent shall be effective upon
receipt, unless sent by (i) overnight courier, in which case they shall be
effective exactly one (1) business day after deposit with such overnight
courier, or (ii) mail, in which case they shall be effective exactly three
(3) business days after deposit in the United States mail. Either party may
change its address or other information by giving notice thereof to the other
party hereto in conformity with this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(d) This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the party against
which such change, waiver or termination is sought to be enforced.
(e) No delay in enforcing or failing to enforce any right
under this Agreement by Lender shall constitute a waiver by Lender of such
right. No waiver by Lender of any default hereunder shall be effective unless in
writing, nor shall any waiver operate as a waiver of any other default or of the
same default on a future occasion.
(f) All rights of Lender hereunder shall inure to the benefit
of its successors and assigns. Borrower shall not assign any of its interest
under this Agreement without the prior written consent of Lender. Any purported
assignment inconsistent with this provision shall, at the option of Lender, be
null and void.
(g) In any action or proceeding brought to enforce any
provision of this Agreement, or to seek damages for a breach of any provision
hereof, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to any other available remedy.
(h) Borrower waives the right to plead any statute of
limitations as a defense to any indebtedness or obligation hereunder to the full
extent permitted by law.
(i) If any provision of this Agreement should be found to be
invalid or unenforceable, all of the other provisions shall nonetheless remain
in full force and effect to the maximum extent permitted by law.
(j) All representations, warranties and covenants of Borrower
contained herein shall survive the execution and delivery of this Agreement, and
shall terminate only upon the full payment and performance by Borrower of its
indebtedness and obligations hereunder.
(k) This Agreement, together with the other Loan Documents, is
intended by the parties as a final expression of their agreement and is intended
as a complete and exclusive statement of the terms and conditions thereof.
Acceptance of or acquiescence in a course of performance rendered under this
Agreement shall not be relevant to determine the meaning of this Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
(l) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the parties hereto have executed this Loan Agreement
as of the date set forth above.
/s/ Xxxx X. Xxxxx (SEAL)
----------------------------- --------------------------------
Witness XXXX X. XXXXX
NATIONAL MEDIA CORPORATION, a Delaware
corporation
By: /s/
---------------------------
Name:
Title:
6
EXHIBIT A
FORM OF SECURED PROMISSORY NOTE
$545,000.00 March 31, 1998
FOR VALUE RECEIVED, the undersigned, XXXX X. XXXXX ("Borrower"),
promises to pay to NATIONAL MEDIA CORPORATION, a Delaware corporation
("Lender"), or order, the principal amount of Five Hundred Forty Five
Thousand Dollars ($545,000.00), with interest from the date hereof on the
unpaid principal balance under this Note at the Prime Rate (as defined below)
in effect from time to time, plus one and one-half percent (1.5%) per annum.
The "Prime Rate" shall mean the prime, reference or other comparable rate
announced from time to time by Norwest Bank, N.A. ("Norwest Bank"), as
reasonably determined by Lender, with the understanding that the Prime Rate
is intended by the parties to be one of Norwest Bank's base rates and may
serve as the basis upon which effective rates of interest are calculated from
those loans making reference thereto. When interest is determined in relation
to the Prime Rate, each change in the rate of interest hereunder shall become
effective on the date each Prime Rate change in announced by Norwest Bank.
Interest shall be due and payable in immediately available funds (i)
quarterly, on January 1, April 1, July 1 and October 1, and (ii) as of any
date in which any principal payment is due and payable hereunder (whether in
cash or otherwise, as provided herein). The principal amount of this Note,
together with any and all accrued and unpaid interest and any and all costs
and expenses provided for under this Note and the other Loan Documents (as
defined in the Loan Agreement (as defined below)), shall be due and payable
on the earliest to occur of the following dates (the "Maturity Date"): (1)
5/30/00, (2) the forty-fifth day following the first date after which
Borrower is no longer an employee of Lender and (3) the date on which the
indebtedness under this Note is accelerated as provided for under this Note,
that certain Loan Agreement, dated as of the date hereof (as amended,
modified and supplemented from time to time, the "Loan Agreement") between
Borrower and Lender or that certain Pledge Agreement, dated as of the date
hereof (as amended, modified and supplemented from time to time, the "Pledge
Agreement") between Borrower and Lender.
Interest shall be calculated on the basis of a year of three hundred
sixty (360) days for the actual number of days elapsed.
The Note shall continue to accrue interest in accordance with the terms
hereof even after Default, an Event of Default, maturity, acceleration,
judgment, bankruptcy, insolvency proceedings of any kind or the happening of any
other event or occurrence, whether similar or dissimilar.
All payments under this Note shall be made to Lender or its order, in
lawful money of the United States of America at the offices of Lender at its
then principal place of business or at such other place as Lender or any holder
hereof shall designate in writing for such purpose from time to time. If a
payment under this Note otherwise would become due and payable on a Saturday,
Sunday or legal holiday, the due date thereof shall be extended to the next day
which is not a Saturday, Sunday or legal holiday, and interest shall be payable
thereon during such extension. All amounts due under this Note and the Loan
Documents shall be payable without defense, set off or counterclaim.
This Note may be prepaid in whole or in part at any time, and shall be
prepaid in accordance with the terms of the Loan Agreement. Any prepayment shall
be without premium or penalty. Each payment and prepayment under this Note shall
applied in the following order: (i) to the payment of costs and expenses
provided for under this Note or any of the other Loan Documents; (ii) to the
payment of accrued and unpaid interest; and (iii) to the payment of outstanding
principal.
Upon the occurrence of a default under this Note or any of the other
Loan Documents, including, without limitation, failure to make any principal or
interest payment by the stated maturity (whether by acceleration, notice of
prepayment or otherwise) for such payment, interest shall thereafter accrue on
the entire unpaid principal balance under this Note, including without
limitation any delinquent interest which has been added to the principal amount
due under this Note pursuant to the terms hereof, at the rate set forth herein
plus three percent (3%) per annum (on the basis of a 360-day year and the actual
number of days elapsed). In addition, upon the occurrence of a default under
this Note or any of the other Loan Documents the holder of this Note may, at its
option, without notice to or demand upon Borrower or any other party, declare
immediately due and payable the entire principal balance hereof
A-1
together with all accrued and unpaid interest thereon, plus any other amounts
then owing pursuant to this Note or any of the other Loan Documents,
whereupon the same shall be immediately due and payable. In no event shall
interest be charged under this Note which would violate any applicable law.
This obligations under this Note and the other Loan Documents are
secured pursuant to Pledge Agreement. Reference is hereby made to the Pledge
Agreement for a description of the nature and extent of the security for this
Note and the rights with respect to such security of the holder of this Note.
Nothing herein shall be deemed to limit the rights of Lender under this Note or
the other Loan Documents, all of which rights and remedies are cumulative.
No waiver or modification of any of the terms of this Note shall be
valid or binding unless set forth in a writing specifically referring to this
Note and signed by a duly authorized officer of Lender or any holder of this
Note, and then only to the extent specifically set forth therein.
If any default occurs in any payment due under this Note, Borrower and
any guarantors and endorsers hereof, and their successors and assigns, promise
to pay all costs and expenses, including attorneys' fees, incurred by each
holder hereof in collecting or attempting to collect the indebtedness under this
Note, whether or not any action or proceeding is commenced. None of the
provisions hereof and none of the holder's rights or remedies under this Note on
account of any past or future defaults shall be deemed to have been waived by
the holder's acceptance of any past due installments or by any indulgence
granted by the holder to Borrower.
Borrower and any guarantors and endorsers hereof, and their successors
and assigns, hereby waive presentment, demand, diligence, protest and notice of
every kind (except such notices as may be required under any of the Loan
Documents), and agree that they shall remain liable for all amounts due under
this Note notwithstanding any extension of time or change in the terms of
payment of this Note granted by any holder hereof, any change, alteration or
release of any property now or hereafter securing the payment hereof or any
delay or failure by the holder hereof to exercise any rights under this Note or
any of the Loan Documents. Borrower and any guarantors and endorsers hereof, and
their successors and assigns, hereby waive the right to plead any and all
statutes of limitation as a defense to a demand under this Note to the full
extent permitted by law.
This Note shall inure to the benefit of Lender, its successors and
assigns and shall bind the heirs, executors, administrators, successors and
assigns of Borrower. Each reference herein to powers or rights of Lender shall
also be deemed a reference to the same power or right of such assignees, to the
extent of the interest assigned to them.
In the event that any one or more provisions of this Note shall be held
to be illegal, invalid or otherwise unenforceable, the same shall not affect any
other provision of this Note and the remaining provisions of this Note shall
remain in full force and effect.
BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ANY
CLERK OF ANY COURT OF RECORD UPON OR AFTER THE OCCURRENCE AND DURING THE
CONTINUANCE OF ANY EVENT OF DEFAULT TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWER, (A) FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE ON THE BORROWER'S
OBLIGATIONS, AND/OR (B) IN ANY ACTION OF REPLEVIN INSTITUTED BY LENDER TO OBTAIN
POSSESSION OF ANY COLLATERAL OR OTHER COLLATERAL SECURITY FOR THE OBLIGATIONS OF
BORROWER TO LENDER, IN EITHER CASE WITH OR WITHOUT DECLARATION, WITH COSTS OF
SUIT, WITHOUT STAY OF EXECUTION AND WITH FIVE (5%) PERCENT OF THE PRINCIPAL
AMOUNT THEREOF, BUT NOT LESS THAN FIVE THOUSAND ($5,000.00) DOLLARS, ADDED FOR
LIEN PRIORITY PURPOSES TOGETHER WITH ACTUAL ATTORNEY'S FEES. BORROWER
UNCONDITIONALLY AND IRREVOCABLY: (A) WAIVES THE RIGHT OF INQUISITION ON ANY REAL
ESTATE LEVIED ON, VOLUNTARILY CONDEMNS THE SAME, AUTHORIZES THE PROTHONOTARY OR
CLERK TO ENTER UPON THE WRIT OF EXECUTION SAID VOLUNTARY CONDEMNATION AND AGREES
THAT SAID REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION; (B) WAIVES AND
RELEASES ALL RELIEF FROM ALL REDEMPTION, APPRAISEMENT, STAY, EXEMPTION OR APPEAL
LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED; AND (C) RELEASES ALL ERRORS
IN SUCH PROCEEDINGS. IF A COPY OF THIS NOTE, VERIFIED BY AFFIDAVIT BY
A-2
OR ON BEHALF OF LENDER SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE
NECESSARY TO FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. THE
AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST BORROWER SHALL NOT
BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF, AND THE SAME MAY BE EXERCISED,
FROM TIME TO TIME, AS OFTEN AS LENDER SHALL DEEM NECESSARY AND DESIRABLE, AND
THIS NOTE SHALL BE A SUFFICIENT WARRANT THEREFORE. LENDER MAY ENTER ONE OR MORE
JUDGMENTS IN THE SAME OR DIFFERENT COUNTIES FOR ALL OR PART OF THE BORROWER'S
OBLIGATIONS, WITHOUT REGARD TO WHETHER JUDGMENT HAS BEEN ENTERED ON MORE THAN
ONE OCCASION FOR THE SAME BORROWER'S OBLIGATIONS. IN THE EVENT ANY JUDGMENT
ENTERED AGAINST BORROWER HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR
ON BORROWER'S BEHALF FOR ANY REASON WHATSOEVER, LENDER IS HEREBY AUTHORIZED AND
EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST BORROWER; SUBJECT,
HOWEVER, TO THE LIMITATION THAT SUCH SUBSEQUENT ENTRY OR ENTRIES OF JUDGMENT BY
LENDER MAY ONLY BE DONE TO CURE ANY ERRORS IN PRIOR PROCEEDINGS, ONLY AND TO THE
EXTENT THAT SUCH ERRORS ARE SUBJECT TO CURE IN THE LATER PROCEEDINGS.
IN ANY LITIGATION ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR
ANY OF THE OTHER OBLIGATIONS IN WHICH BORROWER AND LENDER ARE ADVERSE PARTIES,
BORROWER AND LENDER HEREBY WAIVE TRIAL BY JURY.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without giving effect to the
principles thereof relating to conflicts of law.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
the day and year first above written.
------------------------------- ----------------------------(SEAL)
Witness XXXX X. XXXXX
A-3
EXHIBIT B
FORM OF PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is made and entered into as
of March 31, 1998 by and between XXXX X. XXXXX, as borrower ("Borrower"), and
NATIONAL MEDIA CORPORATION, a Delaware corporation, as lender ("Lender").
RECITALS
18.1 Borrower and Lender have entered into that certain Loan Agreement
dated as of the date hereof (as amended, modified and supplemented from time to
time, the "Loan Agreement"). All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement
18.2 Lender has required, as a condition precedent to making Loans
under the Loan Agreement, that Borrower shall have agreed to make the pledge of
stock contemplated by this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
(a) Pledge. Borrower hereby pledges and grants to Lender a security
interest in the following collateral (the "Pledged Collateral"):
(a) the shares of Lender Common Stock identified on Schedule 1
hereto, and all other shares of Common Stock delivered to Lender pursuant to
this Agreement and all shares of stock in Lender issued in the future to
Borrower, whether certificated or uncertificated, together with all options (and
shares of stock in which Borrower obtains an interest pursuant to the exercise
of any options), rights, dividends issued in addition to, in substitution or in
exchange for, or on account of, any such shares (collectively, the "Pledged
Shares"), and the certificates representing the Pledged Shares, and all
dividends, cash, instruments, chattel paper and other rights, property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) all other claims of any kind or nature, and any
instruments, certificates, chattel paper or other writings evidencing such
claims, whether in contract or tort and whether arising by operation of law,
consensual agreement or otherwise, at any time acquired by Borrower against
Lender or any of its subsidiaries; and
(c) all proceeds of any kind with respect to any of the
foregoing.
(b) Security for Performance. This Agreement (and all of the Pledged
Collateral) secures the payment of the principal of and the interest on the Note
and the performance of Borrower's obligations pursuant to this Agreement and the
other Loan Documents (the "Obligations").
If Borrower shall become entitled to receive or shall receive, in connection
with any of the Pledged Collateral, any: (i) stock or certificate, including,
without limitation, any certificate representing a stock dividend or in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off,
split-off or exercise of an option; (ii) option, warrant or right, whether as an
addition to or in substitution or in exchange for any of the Pledged Collateral,
or otherwise; (iii) dividends or distributions payable in property, including
securities issued by an issuer other than Lender; or (iv) dividends or
distributions of any sort; then, Borrower shall accept the same as Lender's
agent, in express trust for Lender, and shall deliver the same forthwith to
Lender in the exact form received with, as applicable, Borrower's endorsement,
or appropriate stock powers duly executed in blank (with signatures "bank
guaranteed"), which the Borrower hereby unconditionally agrees to make and/or
furnish, to be held by Lender, subject to the terms hereof, as part of the
Pledge Collateral.
B-1
(c) Delivery of Pledged Collateral.
(a) Borrower may at any time deliver to Lender additional
shares of Common Stock to be pledged pursuant to this Agreement, and upon
delivery of such additional shares, they shall become Pledged Shares under and
pursuant to this Agreement.
(b) All certificates or instruments representing or evidencing
the Pledged Collateral shall be delivered to and held by Lender pursuant hereto
and shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to Lender. Lender shall have
the right, at any time in its discretion and without notice to Borrower
following the occurrence of an Event of Default, to transfer to or to register
in the name of Lender or any of its nominees any or all of the Pledged
Collateral. In addition, Lender shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
(d) Representations and Warranties. Borrower represents and
warrants as follows:
(a) Borrower owns the Pledged Collateral free and clear on any
lien, security interest or other encumbrance.
(b) The delivery of the Pledged Shares to Lender pursuant to
this Agreement creates a valid and perfected first priority security interest in
the Pledged Collateral (other than cash not in the possession of Lender),
securing the Obligations.
(c) No consent of any other party (including, without
limitation, any creditor of Borrower) and no governmental approval is required
either (i) for the pledge by Borrower of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement by
Borrower or (ii) for the exercise by Lender of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally).
(e) Further Assurances. Borrower agrees that at any time and from time
to time Borrower will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable or
that Lender may request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Lender to exercise and
enforce its rights and remedies hereunder with respect to any Pledged Collateral
and to carry out the provisions and purposes hereof.
(f) Administration of Security. The following provisions shall govern
the administration of the Pledged Collateral:
(a) So long as no Event of Default shall have occurred:
(i) Borrower shall be entitled to receive all
cash dividends and other cash distributions paid or payable with respect to any
of the Pledged Collateral. Any and all instruments and other property (other
than cash or checks) received, receivable or otherwise distributed in respect
of, or in exchange for, any Pledged Collateral, shall be, and shall be forthwith
delivered to Lender to hold as Pledged Collateral and shall, if received by the
Borrower, be received in express trust for the benefit of Lender, be segregated
from the other property or funds of Borrower, and be forthwith delivered to
Lender as Pledged Collateral in the same form as so received (with any necessary
indorsement).
(ii) Borrower shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Pledged Collateral
or any part thereof for any purpose not inconsistent with the terms of this
Agreement or the Note; provided, however, that the Borrower shall not exercise
or refrain from exercising any such right if, in Lender's judgment, such action
or inaction would have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and provided, further, that the Borrower shall
give Lender at least ten (10) days' written notice of the manner in which he
intends to exercise, and the reasons therefor, or the reasons for
B-2
refraining from exercising, any such right.
(b) Upon the occurrence of an Event of Default:
(i) All rights of Borrower to receive the
dividends which he would otherwise be authorized to receive and retain pursuant
to Section 6(a)(i) shall cease, and all such rights shall become vested in
Lender who shall thereupon have the sole right to receive and hold as Pledged
Collateral such dividends (and to the extent permissible, apply them to the
Obligations of Borrower).
(ii) Upon notice by Lender to Borrower, all
rights to exercise the voting and other consensual rights which he would
otherwise be entitled to exercise pursuant to Section 6(a)(ii), shall cease, and
all such rights shall become vested in Lender who shall thereupon have the sole
right to exercise such voting and other consensual rights.
(iii) All dividends which are received by Borrower
contrary to the provisions of paragraph (i) of this Section 6(b) shall be
received in trust for the benefit of Lender, shall be segregated from other
funds of Borrower and shall be forthwith paid over to Lender as Pledged
Collateral in the same form as so received (with any necessary indorsement).
(g) Lender Appointed Attorney-in-Fact. Borrower hereby appoints Lender
Borrower's attorney-in-fact effective upon the occurrence of an Event of
Default, with full authority in the place and stead of Borrower and in the name
of Borrower or otherwise, from time to time in Lender's discretion to take any
action and to execute any instrument which Lender may deem necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation, to receive, indorse and collect all instruments made payable to
Borrower representing any dividend (other than Tax Dividends) or other
distribution in respect of the Pledged Collateral or any part thereof.
(h) Lender's Duties; Reasonable Care. The powers conferred on Lender
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty on it to exercise any such powers. Except for the safe
custody of any Pledged Collateral in its possession and the accounting for
monies actually received by it hereunder, Lender shall have no duty as to any
Pledged Collateral. Lender shall be deemed to have exercised reasonable care in
the custody and preservation of the Pledged Collateral in its possession if the
Pledged Collateral is accorded treatment that is not materially less protective
than that which Lender accords its own property.
(i) Remedies upon Default. If any Event of Default shall have occurred:
[(a) Lender may exercise in respect of the Pledged Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party under the
Uniform Commercial Code (the "Code") in effect in the Commonwealth of
Pennsylvania at that time, and Lender may also (i) with ten (10) days' notice to
the Borrower, accept and cancel the certificates evidencing any Pledged Shares,
with each Pledged Share valued as the average of the last reported sales price
for the five (5) consecutive trading days immediately preceding the date in
question, and/or (ii) without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange, broker's board or at any of Lender's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as Lender may
deem commercially reasonable. The Borrower acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten (10) days' notice to the
Borrower of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. Lender
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. Lender may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned. Lender shall be under no obligation to delay a sale of any of the
Pledged Shares for the period of time necessary to permit the issuing
corporation of such securities to register such securities for public sale under
the Securities Act of 1933, as from time to time amended (the "Securities Act"),
or under applicable state securities laws, even if the issuing corporation would
agree to do so.]
B-3
(b) Any cash held by Lender as Pledged Collateral and all cash
proceeds received by Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of Lender, be held by Lender as collateral for, and/or then or at any
time thereafter applied in whole or in part by Lender for its benefit against,
all or any part of the Obligations of Borrower pursuant to the Note or this
Agreement. Any surplus of such cash or cash proceeds held by Lender and
remaining after payment in full of all the Obligations shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive such surplus or as
a court of competent jurisdiction may direct; provided, that in the event that
all of the conditions to the termination of this Agreement pursuant to Section
11 shall not have been fulfilled, such balance shall be held and applied from
time to time as provided in this subsection 9(b) until all such conditions shall
have been fulfilled.
(j) Remedies Cumulative. Each right, power and remedy of Lender
provided in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Agreement or
now or hereafter existing at law or in equity or by statute or otherwise. The
exercise or partial exercise by Lender of any one or more of such rights, powers
or remedies shall not preclude the simultaneous or later exercise by Lender of
all such other rights, powers or remedies, and no failure or delay on the part
of Lender to exercise any such right, power or remedy shall operate as a waiver
thereof.
(k) Release; Termination.
(a) So long as no Event of Default shall have occurred and the
requirements of payment set forth in the Note are satisfied, Borrower may sell
or dispose of any Pledged Collateral, if such sale or disposition is not
prohibited by any terms or conditions of this Agreement or any other Loan
Agreement. Lender shall upon request of Borrower execute and deliver to Borrower
a release or releases in form reasonably satisfactory to Lender to release the
lien of this Agreement with respect to such Pledged Collateral and assign,
transfer and deliver such Pledged Collateral to Borrower. Such releases and
assignments shall be without warranty by or recourse to Lender, except as to the
absence of any prior assignments by Lender of its interest in the Pledged
Collateral, and shall be at the expense of Borrower.
(b) This Agreement shall terminate upon full and complete
payment in full of all Obligations and the termination of the Obligations of the
Lender under the Loan Agreement. Lender, at the time of such termination and at
the expense of Borrower and subject to the provisions of Section 17 below, will
execute and deliver to Borrower a proper instrument or instruments acknowledging
the termination of this Agreement, and will duly assign, transfer and deliver to
the Borrower such of the Pledged Collateral as has not yet theretofore been sold
or otherwise applied or released pursuant to this Agreement, together with any
moneys at the time held by Lender hereunder. Such assignment and delivery shall
be without warranty by or recourse to Lender, except as to the absence of any
prior assignments by Lender of its interest in the Pledged Collateral.
(l) Notice. Any notice, approval, consent or other communication shall
be in the form and manner and to the addresses as set forth in the Loan
Agreement.
(m) Continuing Security Interest; Transfer of Notes. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) remain in full force and effect until terminated pursuant to Section 11(b),
(ii) be binding upon Borrower, his successors and assigns, and (iii) inure,
together with the rights and remedies of Lender hereunder, to the benefit of
Lender, its successors, transferees and assigns.
(n) Waiver. To the fullest extent he may lawfully so agree, Borrower
agrees that he will not at any time insist upon, claim, plead, or take any
benefit or advantage of any appraisement, valuation, stay, extension,
moratorium, redemption or similar law now or hereafter in force in order to
prevent, delay, or hinder the enforcement hereof or the absolute sale of any
part of the Pledged Collateral; Borrower for himself and all who claim through
him, so far as he or they now or hereafter lawfully may do so, hereby waive the
benefit of all such laws, and all right to have the Pledged Collateral
marshalled upon any foreclosure hereof, and agree that any court having
jurisdiction to foreclose this Agreement may order the sale of the Pledged
Collateral as an entirety.
B-4
(o) Reinstatement. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by Lender in
respect of Borrower's Obligations pursuant to the Note or this Agreement is
rescinded or must otherwise be restored or returned by Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower
or upon the appointment of any intervenor or conservator of, or trustee or
similar official for, Borrower or any substantial part of his assets, or
otherwise, all as though such payments had not been made.
(p) Severability. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Agreement in any jurisdiction.
(q) Interpretation. Time is of the essence of each provision of this
Agreement of which time is an element. To the extent a term or provision of this
Agreement conflicts with the Loan Agreement and is not dealt with more
specifically herein, the Loan Agreement shall control with respect to such term
or provision.
(r) Survival of Provisions. All representations, warranties and
covenants of Borrower contained herein shall survive the execution and delivery
of this Agreement, and shall terminate only upon the full and final payment and
performance by Borrower of his indebtedness and obligations secured hereby.
(s) Headings Descriptive. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
or construction or any provision of this Agreement.
(t) Entire Agreement. This Agreement, together with the other Loan
Documents is intended by the parties as a final expression of their agreement
and is intended as a complete and exclusive statement of the terms and
conditions thereof. Acceptance of or acquiescence in a course of performance
rendered under this Agreement shall not be relevant to determine the meaning of
this Agreement even though the accepting or acquiescing party had knowledge of
the nature of the performance and opportunity for objection.
(u) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
(v) Governing Law. This Agreement shall be construed in accordance with
and all disputes hereunder shall be governed by the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of laws.
(w) Amendments. This Agreement may be amended, modified or supplemented
only by a written instrument signed by Borrower and Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
/s/ Xxxx X. Xxxxx (SEAL)
---------------------------- -----------------------------------
Witness XXXX X. XXXXX
NATIONAL MEDIA CORPORATION, a Delaware
corporation
By:
---------------------------------
Name:
Title:
B-5
Schedule 1
List of Pledged Shares
Stock Certificate Number Number of Shares
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