BERMUDA
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0-24796
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98-0438382
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(State or other jurisdiction of incorporation and organisation)
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(Commission File Number)
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(IRS Employer Identification No.)
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O’Hara House, 3 Bermudiana Road,
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|
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Hamilton, Bermuda
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HM 08
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(Address of principal executive offices)
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(Zip Code)
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o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement |
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
Item 7.01 | Regulation FD Disclosure |
Item 9.01
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Financial Statements and Exhibits
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Credit Agreement dated as of November 14, 2014 among Central European Media Enterprises Ltd., BNP Paribas, as administrative agent, Time Warner Inc., as guarantor, and the lenders party thereto.
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Commitment Letter dated as of November 14, 2014 between Central European Media Enterprises Ltd. and Time Warner Inc.
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Reimbursement Agreement dated as of November 14, 2014 between Central European Media Enterprises Ltd., as borrower, and Time Warner Inc, as guarantor.
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Guarantee dated as of November 14, 2014 among Central European Media Enterprises N.V. and CME Media Enterprises B.V., as subsidiary guarantors, and Time Warner Inc.
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Pledge Agreement on Shares in Central European Media Enterprises N.V. dated 14 November 2014 among Central European Media Enterprises Ltd., as pledgor, Time Warner Inc., as pledgee, and Central European Media Enterprises N.V.
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Deed of Pledge of Shares (CME Media Enterprises B.V.) dated 14 November 2014 among Central European Media Enterprises N.V., as pledgor, Time Warner Inc. as pledgee, and CME Media Enterprises B.V.
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Deed of Amendment dated 14 November 2014 to the Intercreditor Agreement dated July 21, 2006, as amended and restated, among Central European Media Enterprises Ltd., Central European Media Enterprises N.V., CME Media Enterprises B.V., and the other parties thereto.
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Intercreditor Agreement dated July 21, 2006, as amended and restated, among Central European Media Enterprises Ltd., Central European Media Enterprises N.V., CME Media Enterprises B.V., and the other parties thereto.
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Amended and Restated Term Loan Facility Credit Agreement dated as of November 14, 2014 among Central European Media Enterprises Ltd., Time Warner Inc., as administrative agent, and the lenders party thereto.
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Amended and Restated Revolving Loan Facility Credit Agreement dated as of November 14, 2014 among Central European Media Enterprises Ltd., Time Warner Inc., as administrative agent and the lenders party thereto.
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Exhibit 99.1 |
Press release of Central European Media Enterprises Ltd. dated November 14, 2014.
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CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
|
||
Date: November 14, 2014
|
/s/ David Sturgeon | |
David Sturgeon | ||
Chief Financial Officer |
|
Page | ||
ARTICLE I DEFINITIONS
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1
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SECTION 1.01.
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Defined Terms
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1
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SECTION 1.02.
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Classification of Loans and Borrowings
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20
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SECTION 1.03.
|
Terms Generally
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21
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SECTION 1.04.
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Accounting Terms; GAAP
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21
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SECTION 1.05.
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Borrower Representations and Covenants
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22
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ARTICLE II THE CREDITS
|
22
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SECTION 2.01.
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Commitments
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22
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SECTION 2.02.
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Loans and Borrowings
|
22
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SECTION 2.03.
|
Request for Borrowing
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22
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SECTION 2.04.
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Intentionally Omitted
|
23
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SECTION 2.05.
|
Intentionally Omitted
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23
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SECTION 2.06.
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Funding of Borrowing
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23
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SECTION 2.07.
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Interest Periods
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23
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SECTION 2.08.
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Termination of Commitments
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24
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SECTION 2.09.
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Repayment of Loans; Evidence of Debt
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24
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SECTION 2.10.
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Prepayment of Loans
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24
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SECTION 2.11.
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Fees
|
25
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SECTION 2.12.
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Interest
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25
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SECTION 2.13.
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Alternate Rate of Interest
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26
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SECTION 2.14.
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Increased Costs
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26
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SECTION 2.15.
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Break Funding Payments
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28
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SECTION 2.16.
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Taxes
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28
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SECTION 2.17.
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Payments Generally; Pro Rata Treatment; Sharing of Setoffs
|
30
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SECTION 2.18.
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Mitigation Obligations; Replacement of Lenders; Purchase Option
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32
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SECTION 2.19.
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Intentionally Omitted
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33
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SECTION 2.20.
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Adoption of the Euro
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33
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SECTION 2.21.
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Additional Commitments
|
34
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SECTION 2.22.
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Defaulting Lenders
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34
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ARTICLE III REPRESENTATIONS AND WARRANTIES
|
35
|
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SECTION 3.01.
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Organization; Powers
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35
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SECTION 3.02.
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Authorization; Enforceability
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35
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SECTION 3.03.
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Governmental Approvals; No Conflicts
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35
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SECTION 3.04.
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Financial Condition; No Material Adverse Change
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36
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SECTION 3.05.
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Properties
|
36
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SECTION 3.06.
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Litigation and Environmental Matters
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36
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SECTION 3.07.
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Compliance with Laws and Agreements
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37
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SECTION 3.08.
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Government Regulation
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37
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SECTION 3.09.
|
Taxes
|
37
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SECTION 3.10.
|
ERISA
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37
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SECTION 3.11.
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Disclosure
|
38
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SECTION 3.12.
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Anti-Corruption Laws and Sanctions Laws
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38
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ARTICLE IV CONDITIONS PRECEDENT
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39
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SECTION 4.01.
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Signing Date Conditions
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39
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SECTION 4.02.
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Closing Date Conditions
|
40
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ARTICLE V AFFIRMATIVE COVENANTS
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41
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SECTION 5.01.
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Financial Statements and Other Information
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41
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SECTION 5.02.
|
Notices of Material Events
|
44
|
SECTION 5.03.
|
Existence; Conduct of Business
|
44
|
SECTION 5.04.
|
Payment of Obligations
|
45
|
SECTION 5.05.
|
Maintenance of Properties; Insurance
|
45
|
SECTION 5.06.
|
Books and Records; Inspection Rights
|
45
|
SECTION 5.07.
|
Compliance with Laws
|
45
|
SECTION 5.08.
|
Use of Proceeds
|
45
|
SECTION 5.09.
|
Fiscal Periods; Accounting
|
45
|
ARTICLE VI NEGATIVE COVENANTS
|
46
|
|
SECTION 6.01.
|
Consolidated Leverage Ratio
|
46
|
SECTION 6.02.
|
Indebtedness
|
46
|
SECTION 6.03.
|
Liens
|
47
|
SECTION 6.04.
|
Mergers, Etc
|
48
|
SECTION 6.05.
|
Investments
|
48
|
SECTION 6.06.
|
Restricted Payments
|
48
|
SECTION 6.07.
|
Transactions with Affiliates
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49
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SECTION 6.08.
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Unrestricted Subsidiaries
|
49
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ARTICLE VII EVENTS OF DEFAULT
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50
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ARTICLE VIII THE ADMINISTRATIVE AGENT
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52
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ARTICLE IX MISCELLANEOUS
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55
|
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SECTION 9.01.
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Notices
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55
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SECTION 9.02.
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Waivers; Amendments; Release of Guarantor
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56
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SECTION 9.03.
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Expenses; Indemnity; Damage Waiver
|
57
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SECTION 9.04.
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Successors and Assigns
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59
|
SECTION 9.05.
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Survival
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61
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SECTION 9.06.
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Counterparts; Integration; Effectiveness
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62
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SECTION 9.07.
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Severability
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62
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SECTION 9.08.
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Right of Setoff
|
62
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SECTION 9.09.
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Governing Law; Jurisdiction; Consent to Service of Process
|
63
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SECTION 9.10.
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WAIVER OF JURY TRIAL
|
63
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SECTION 9.11.
|
Headings
|
63
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SECTION 9.12.
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Confidentiality
|
64
|
SECTION 9.13.
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Acknowledgments
|
65
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SECTION 9.14.
|
Judgment Currency
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65
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SECTION 9.15.
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USA Patriot Act
|
65
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SECTION 9.16.
|
Guarantor Payment
|
65
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SCHEDULES:
|
|
SCHEDULE 2.01
|
Commitments
|
SCHEDULE 2.03(A)
|
Borrowing Notice/Prepayment Notice
|
Unrestricted Subsidiaries
|
|
SCHEDULE 8
|
List of Proper Persons
|
EXHIBITS:
|
|
EXHIBIT A
|
Form of Assignment and Acceptance
|
EXHIBIT B
|
Form of Guarantee
|
Ratings S&P / Moody’s
|
Applicable Rate
for the Facility
(Bps)
|
Category A
A / A2 or Higher
|
107.0
|
Category B
A- / A3
|
117.5
|
Category C
BBB+ / Baa1
|
127.5
|
Category D
BBB / Baa2
|
150.0
|
Category E
BBB- / Baa3
|
170.0
|
Category F
Lower than BBB- / Baa3
|
190.0
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD., as Borrower
|
|||
By:
|
/s/ David Sturgeon | ||
Name: David Sturgeon
|
|||
Title: Chief Financial Officer
|
TIME WARNER INC., as Guarantor
|
|||
By:
|
/s/ Edward B. Ruggiero | ||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Treasurer
|
BNP PARIBAS, as Administrative Agent and as Lender
|
|||
By:
|
/s/ Nicolas Rabier | ||
Name: Nicolas Rabier
|
|||
Title: Managing Director
|
By:
|
/s/ Nicole Rodriguez | ||
Name: Nicole Rodriguez
|
|||
Title: Vice President
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender
|
|||
By:
|
/s/ Bruno Pezy | ||
Name: Bruno Pezy
|
|||
Title: MD
|
|||
By:
|
/s/ Stephane Ducroizet | ||
Name: Stephane Ducroizet
|
|||
Title: MD
|
Lender
|
Commitment
|
BNP Paribas
|
€ 150,800,000
|
Credit Agricole Corporate and Investment Bank
|
€ 100,000,000
|
TOTAL
|
€250,800,000
|
Loan Type:
|
A borrowing notice (pursuant and subject to Section 2.03, as applicable) must be given not later than:
|
Prepayment notice (pursuant to Section 2.10) must be given not later than:
|
LOANS
|
||
Any Eurocurrency Borrowing
|
11:00 a.m. New York City time three (3) Business Days before the date of the proposed Borrowing.
|
12:00 p.m. New York City time three (3) Business Days (or such shorter period of time as reasonably acceptable to the Administrative Agent) before the date of prepayment.
|
1. | TW Receivables, Inc. |
2. | Sellers, LLC |
3. | Witty, LLC |
4. | 281, LLC |
5. | Conspire, LLC |
6. | Stormy, LLC |
7. | Bandy, LLC |
8. | Umbria, LLC |
9. | LIS Distribution, Inc. |
10. | Love and War Distribution, Inc. |
11. | Starter, LLC |
12. | Like It, LLC |
Dave Sturgeon
|
Chief Financial Officer
|
Sanjay Prasad
|
Deputy Chief Financial Officer
|
Name
|
Title
|
Howard M. Averill
|
Executive Vice President and Chief Financial Officer
|
Edward B. Ruggiero
|
Senior Vice President and Treasurer
|
Daniel J. Happer*
|
Vice President and Assistant Treasurer
|
Stephen N. Kapner*
|
Vice President and Assistant Treasurer
|
Eric Schott*
|
Vice President and Assistant Treasurer
|
Amount of Credit Exposure Assigned
|
||
€ __________________
|
[Name of Assignee]
|
|
[Name of Assignor]
|
|
||
|
|
|
|
|
|
By:
|
|
|
By:
|
|
|
|
Title:
|
|
|
Title:
|
|
Accepted for Recordation in the Register:
|
|
|
|
|
|
|
|
BNP PARIBAS, as
|
|
|
|
Administrative Agent
|
|
|
|
By:
|
|||
Title:
|
Required Consents (if any):
[TIME WARNER INC.
|
|
|
|
By:
|
|||
Title:]
|
[CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
|
|
|
|
By:
|
|||
Title:]
|
TIME WARNER INC.
|
|||
By:
|
|||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Treasurer
|
|||
HISTORIC TW INC.
|
|||
By:
|
|||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Treasurer
|
|||
TURNER BROADCASTING SYSTEM, INC.
|
|||
By:
|
|||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Assistant Treasurer
|
|||
HOME BOX OFFICE, INC.
|
|||
By:
|
|||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Assistant Treasurer
|
·
|
outstanding $261.0 million aggregate principal amount of its Senior Convertible Notes due 2015 (the “2015 Notes”);
|
·
|
outstanding $400.0 million aggregate principal amount of its Senior Secured Notes due 2017 (the “2017 PIK Notes”) issued by CME under the Indenture dated as of May 2, 2014, among CME, as issuer, the guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee, paying agent, transfer agent and registrar;
|
·
|
outstanding approximately $32.0 million aggregate principal amount under that certain Amended and Restated Term Loan Facility Credit Agreement dated as of November 14, 2014 (as amended, the “Term Loan Credit Agreement”), among CME, the lenders party thereto from time to time and Time Warner, as administrative agent, which amended the original Term Loan Credit Agreement dated as of February 28, 2014; and
|
·
|
entered into that certain Amended and Restated Revolving Loan Facility Credit Agreement, dated as of November 14, 2014 (as amended, the “Revolving Loan Credit Agreement”), among CME, Time Warner and the other lenders party thereto from time to time, and the administrative agent, which amended the original Revolving Loan Credit Agreement dated as of May 2, 2014;
|
CENTRAL EUROPEAN MEDIA
|
|||
ENTERPRISES LTD.
|
|||
By:
|
/s/ David Sturgeon | ||
Name: David Sturgeon
|
|||
Title: Chief Financial Officer
|
TIME WARNER INC.
|
|||
By:
|
/s/ Edward B. Ruggiero | ||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vise President & Treasurer
|
Schedules
|
||
Schedule 1
|
-
|
Conditions Precedent to Effectiveness of the Commitment Letter
|
Schedule 3.1
|
-
|
2015 Refinancing Transaction Closing Conditions
|
Annexes
|
||
Annex I
|
-
|
Form of 2015 Third Party Credit Agreement
|
Annex II
|
-
|
Form of 2015 Third Party Credit Agreement Guarantee
|
Annex III
|
-
|
Form of 2015 Time Warner Credit Agreement
|
1.
|
Time Warner and CME shall have entered into that certain Credit Agreement dated as of the date hereof (the “2017 Third Party Credit Agreement”) among CME, as borrower, Time Warner as guarantor, the lenders party thereto and BNP Paribas, as administrative agent. Time Warner shall have entered into its Guarantee dated as of the date hereof in favor of the lenders under such 2017 Third Party Credit Agreement. Time Warner and CME shall have entered into the Reimbursement Agreement.
|
2.
|
All conditions precedent to the borrowing under the 2017 Third Party Credit Agreement shall have been satisfied other than the Closing Date conditions set out in Section 4.02 therein.
|
3.
|
CET 21 shall have issued a notice of redemption to redeem all of the 2017 Notes on or around December 15, 2014.
|
4.
|
Time Warner and CME shall have amended and restated the Revolving Loan Credit Agreement as of the hereof.
|
5.
|
Time Warner and CME have shall have amended and restated the Term Loan Credit Agreement as of the date hereof.
|
6.
|
CME shall have entered into hedge arrangements satisfactory to CME and Time Warner on November 14, 2014. Time Warner shall have executed a guarantee of the obligations of CME thereunder.
|
7.
|
No Default or Event of Default shall have occurred and be continuing under the Term Loan Credit Agreement, the Revolving Loan Credit Agreement or the 2017 PIK Notes.
|
8.
|
Since December 31, 2013, there shall not have occurred a material adverse effect on the financial condition, business, results of operations, properties, assets or liabilities of CME and its subsidiaries taken as a whole.
|
9.
|
The representations and warranties of CME contained in the Commitment Letter shall be true and correct.
|
1. | The 2017 Notes shall have been redeemed. |
2. | No Default or Event of Default shall have occurred and be continuing under the Term Loan Credit Agreement, the Revolving Loan Credit Agreement, the 2017 PIK Notes or the 2017 Third Party Credit Agreement. |
3. | Since December 31, 2014, there shall not have occurred a material adverse effect on the financial condition, business, results of operations, properties, assets or liabilities of CME and its subsidiaries taken as a whole. |
4. | The collateral required to be in place pursuant to the terms of the 2015 Time Warner Credit Agreement, if applicable, shall have been granted and perfected. The Amended Intercreditor Agreement (as defined in the Reimbursement Agreement) and the Reimbursement Agreement shall be in full force and effect. |
6. | The representations and warranties of CME contained in the Commitment Letter shall be true and correct. |
7. |
CME shall have delivered to Time Warner audited annual and unaudited quarterly financial statements for the fiscal year and fiscal quarter, respectively, most recently ended for which financial statements are available and a budget overview for the next succeeding fiscal year along with projections through Financial Year 2019.
|
Dated as of [ ], 2015
|
among
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
as Borrower,
and
TIME WARNER INC.,
as Guarantor,
|
The Lenders Party Hereto,
|
and
|
[ ]
as Administrative Agent,
|
$261,034,000 SENIOR UNSECURED TERM CREDIT FACILITY
|
Page
|
|||
ARTICLE I
|
DEFINITIONS
|
1
|
|
SECTION 1.01.
|
Defined Terms
|
1
|
|
SECTION 1.02.
|
Classification of Loans and Borrowings
|
19
|
|
SECTION 1.03.
|
Terms Generally
|
19
|
|
SECTION 1.04.
|
Accounting Terms; GAAP
|
20
|
|
SECTION 1.05.
|
Borrower Representations and Covenants
|
20
|
|
ARTICLE II
|
THE CREDITS
|
21
|
|
SECTION 2.01.
|
Commitments
|
21
|
|
SECTION 2.02.
|
Loans and Borrowings
|
21
|
|
SECTION 2.03.
|
Request for Borrowing
|
21
|
|
SECTION 2.04.
|
Intentionally Omitted
|
22
|
|
SECTION 2.05.
|
Intentionally Omitted
|
22
|
|
SECTION 2.06.
|
Funding of Borrowing
|
22
|
|
SECTION 2.07.
|
Interest Periods
|
22
|
|
SECTION 2.08.
|
Termination of Commitments
|
22
|
|
SECTION 2.09.
|
Repayment of Loans; Evidence of Debt
|
22
|
|
SECTION 2.10.
|
Prepayment of Loans
|
23
|
|
SECTION 2.11.
|
Fees
|
23
|
|
SECTION 2.12.
|
Interest
|
24
|
|
SECTION 2.13.
|
Alternate Rate of Interest
|
24
|
|
SECTION 2.14.
|
Increased Costs
|
25
|
|
SECTION 2.15.
|
Break Funding Payments
|
26
|
|
SECTION 2.16.
|
Taxes
|
26
|
|
SECTION 2.17.
|
Payments Generally; Pro Rata Treatment; Sharing of Setoffs
|
29
|
|
SECTION 2.18.
|
Mitigation Obligations; Replacement of Lenders; Purchase Option
|
30
|
|
SECTION 2.19.
|
Defaulting Lenders
|
31
|
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES
|
32
|
|
SECTION 3.01.
|
Organization; Powers
|
32
|
|
SECTION 3.02.
|
Authorization; Enforceability
|
32
|
|
SECTION 3.03.
|
Governmental Approvals; No Conflicts
|
33
|
|
SECTION 3.04.
|
Financial Condition; No Material Adverse Change
|
33
|
|
SECTION 3.05.
|
Properties
|
33
|
|
SECTION 3.06.
|
Litigation and Environmental Matters
|
34
|
|
SECTION 3.07.
|
Compliance with Laws and Agreements
|
34
|
|
SECTION 3.08.
|
Government Regulation
|
34
|
|
SECTION 3.09.
|
Taxes
|
34
|
|
SECTION 3.10.
|
ERISA
|
35
|
|
SECTION 3.11.
|
Disclosure
|
35
|
SECTION 3.12.
|
Anti-Corruption Laws and Sanctions Laws
|
35
|
|
ARTICLE IV
|
CONDITIONS PRECEDENT
|
36
|
|
SECTION 4.01.
|
Closing Date Conditions
|
36
|
|
ARTICLE V
|
AFFIRMATIVE COVENANTS
|
38
|
|
SECTION 5.01.
|
Financial Statements and Other Information
|
38
|
|
SECTION 5.02.
|
Notices of Material Events
|
41
|
|
SECTION 5.03.
|
Existence; Conduct of Business
|
41
|
|
SECTION 5.04.
|
Payment of Obligations
|
41
|
|
SECTION 5.05.
|
Maintenance of Properties; Insurance
|
42
|
|
SECTION 5.06.
|
Books and Records; Inspection Rights
|
42
|
|
SECTION 5.07.
|
Compliance with Laws
|
42
|
|
SECTION 5.08.
|
Use of Proceeds
|
42
|
|
SECTION 5.09.
|
Fiscal Periods; Accounting
|
42
|
|
ARTICLE VI
|
NEGATIVE COVENANTS
|
43
|
|
SECTION 6.01.
|
Consolidated Leverage Ratio
|
43
|
|
SECTION 6.02.
|
Indebtedness
|
43
|
|
SECTION 6.03.
|
Liens
|
43
|
|
SECTION 6.04.
|
Mergers, Etc
|
45
|
|
SECTION 6.05.
|
Investments
|
45
|
|
SECTION 6.06.
|
Restricted Payments
|
45
|
|
SECTION 6.07.
|
Transactions with Affiliates
|
45
|
|
SECTION 6.08.
|
Unrestricted Subsidiaries
|
46
|
|
ARTICLE VII
|
EVENTS OF DEFAULT
|
47
|
|
ARTICLE VIII
|
THE ADMINISTRATIVE AGENT
|
49
|
|
ARTICLE IX
|
MISCELLANEOUS
|
52
|
|
SECTION 9.01.
|
Notices
|
52
|
|
SECTION 9.02.
|
Waivers; Amendments; Release of Subsidiary Guarantors
|
53
|
|
SECTION 9.03.
|
Expenses; Indemnity; Damage Waiver
|
54
|
|
SECTION 9.04.
|
Successors and Assigns
|
55
|
|
SECTION 9.05.
|
Survival
|
58
|
|
SECTION 9.06.
|
Counterparts; Integration; Effectiveness
|
58
|
|
SECTION 9.07.
|
Severability
|
59
|
|
SECTION 9.08.
|
Right of Setoff
|
59
|
|
SECTION 9.09.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
59
|
|
SECTION 9.10.
|
WAIVER OF JURY TRIAL
|
60
|
|
SECTION 9.11.
|
Headings
|
60
|
|
SECTION 9.12.
|
Confidentiality
|
60
|
|
SECTION 9.13.
|
Acknowledgments
|
61
|
|
SECTION 9.14.
|
Judgment Currency
|
62
|
SECTION 9.15.
|
USA Patriot Act
|
62
|
|
SECTION 9.16.
|
Guarantor Payment
|
62
|
|
SCHEDULES:
|
|||
SCHEDULE 2.01
|
Commitments
|
||
SCHEDULE 2.03(A)
|
Borrowing Notice/Prepayment Notice
|
||
SCHEDULE 6.08
|
Unrestricted Subsidiaries
|
||
SCHEDULE 8
|
List of Proper Persons
|
||
EXHIBITS:
|
|||
EXHIBIT A
|
Form of Assignment and Acceptance
|
||
EXHIBIT B
|
Form of Guarantee
|
Ratings S&P / Moody’s
|
Applicable Rate
for the Facility
(Bps)
|
Category A
A / A2 or Higher
|
[ ]
|
Category B
A- / A3
|
[ ]
|
Category C
BBB+ / Baa1
|
[ ]
|
Category D
BBB / Baa2
|
[ ]
|
Category E
BBB- / Baa3
|
[ ]
|
Category F
Lower than BBB- / Baa3
|
[ ]
|
CENTRAL EUROPEAN MEDIA ENTERPRISES
|
||
LTD., as Borrower
|
||
By:
|
||
Name:
|
||
Title:
|
TIME WARNER INC., as Guarantor
|
||
By:
|
||
Name:
|
||
Title:
|
[ ], as Administrative Agent and as Lender
|
||
By:
|
||
Name:
|
||
Title:
|
Lender
|
Commitment
|
[ ]
|
$[_____]
|
TOTAL
|
$[ ]
|
Loan Type:
|
A borrowing notice (pursuant and subject to Section 2.03, as applicable) must be given not later than:
|
Prepayment notice (pursuant to Section 2.10) must be given not later than:
|
LOANS
|
||
Any Eurodollar Borrowing
|
11:00 a.m. New York City time three (3) Business Days before the date of the proposed Borrowing.
|
12:00 p.m. New York City time three (3) Business Days (or such shorter period of time as reasonably acceptable to the Administrative Agent) before the date of prepayment.
|
1.
|
TW Receivables, Inc.
|
2.
|
Sellers, LLC
|
3.
|
Witty, LLC
|
4.
|
281, LLC
|
5.
|
Conspire, LLC
|
6.
|
Stormy, LLC
|
7.
|
Bandy, LLC
|
8.
|
Umbria, LLC
|
9.
|
LIS Distribution, Inc.
|
10.
|
Love and War Distribution, Inc.
|
11.
|
Starter, LLC
|
12.
|
Like It, LLC
|
Dave Sturgeon
|
Chief Financial Officer
|
Sanjay Prasad
|
Deputy Chief Financial Officer
|
Name
|
Title
|
Howard M. Averill
|
Executive Vice President and Chief Financial Officer
|
Edward B. Ruggiero
|
Senior Vice President and Treasurer
|
Daniel J. Happer*
|
Vice President and Assistant Treasurer
|
Stephen N. Kapner*
|
Vice President and Assistant Treasurer
|
Eric Schott*
|
Vice President and Assistant Treasurer
|
$ |
[Name of Assignee]
|
[Name of Assignor]
|
||||
By:
|
By:
|
||||
Title:
|
Title:
|
Accepted for Recordation in the Register:
|
||
[ ], as
|
||
Administrative Agent
|
||
By:
|
||
Title:
|
||
Required Consents (if any):
|
||
[TIME WARNER INC.
|
||
By:
|
||
Title:]
|
||
[CENTRAL EUROPEAN MEDIA
|
||
ENTERPRISES LTD.
|
||
By:
|
||
Title:]
|
TIME WARNER INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
||
HISTORIC TW INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
||
TURNER BROADCASTING SYSTEM, INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Assistant Treasurer
|
||
HOME BOX OFFICE, INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Assistant Treasurer
|
TIME WARNER INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
||
HISTORIC TW INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
||
TURNER BROADCASTING SYSTEM, INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Assistant Treasurer
|
||
HOME BOX OFFICE, INC.
|
||
By:
|
||
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Assistant Treasurer
|
||
Page | ||
ARTICLE I
|
DEFINITIONS AND ACCOUNTING TERMS
|
1
|
Section 1.01
|
Defined Terms
|
1
|
Section 1.02
|
Terms Generally
|
28
|
Section 1.03
|
Resolution of Drafting Ambiguities
|
29
|
Section 1.04
|
Fluctuations in the Exchange Rate of Currencies
|
29
|
ARTICLE II
|
THE CREDITS
|
29
|
Section 2.01
|
Term Loan Commitments
|
29
|
Section 2.02
|
Loan
|
29
|
Section 2.03
|
Requests for the Loan
|
29
|
Section 2.04
|
Funding of the Loan
|
30
|
Section 2.05
|
Reserved
|
30
|
Section 2.06
|
Termination and Reduction of Commitments
|
30
|
Section 2.07
|
Repayment of the Loan; Evidence of Debt
|
30
|
Section 2.08
|
Prepayment of the Loan
|
31
|
Section 2.09
|
Interest
|
32
|
Section 2.10
|
Reserved
|
33
|
Section 2.11
|
Increased Costs
|
33
|
Section 2.12
|
Reserved
|
34
|
Section 2.13
|
Illegality
|
34
|
Section 2.14
|
Taxes
|
34
|
Section 2.15
|
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs
|
36
|
Section 2.16
|
Fees
|
38
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES
|
38
|
Section 3.01
|
Organization; Powers; Authorization; Enforceability
|
38
|
Section 3.02
|
Approvals; No Conflicts
|
38
|
Section 3.03
|
Financial Condition; No Material Adverse Change
|
39
|
Section 3.04
|
Litigation and Environmental Matters
|
39
|
Section 3.05
|
Solvency
|
40
|
Section 3.06
|
Margin Securities
|
40
|
Section 3.07
|
Pari Passu Ranking
|
40
|
Section 3.08
|
Filing or Stamp Tax
|
40
|
Section 3.09
|
Properties
|
40
|
Section 3.10
|
Compliance with Laws and Agreements
|
40
|
Section 3.11
|
Taxes
|
40
|
Section 3.12
|
Disclosure
|
41
|
Section 3.13
|
Subsidiaries
|
41
|
Section 3.14
|
Insurance
|
41
|
Section 3.15
|
Anti-Terrorism Laws; Anti-Corruption Laws
|
41
|
Section 3.16
|
Security Interest and Perfection
|
42
|
Section 3.17
|
Use of Proceeds
|
42
|
Section 3.18
|
Intellectual Property
|
42
|
Section 3.19
|
No Default
|
42
|
ARTICLE IV
|
CONDITIONS
|
42
|
Section 4.01
|
Effective Date
|
42
|
ARTICLE V
|
COVENANTS
|
44
|
Section 5.01
|
Information Undertakings
|
44
|
Section 5.02
|
Notices of Material Events
|
48
|
Section 5.03
|
Use of Proceeds
|
48
|
Section 5.04
|
Financial Covenants
|
48
|
Section 5.05
|
Authorizations
|
52
|
Section 5.06
|
Compliance with Laws
|
52
|
Section 5.07
|
Taxation
|
52
|
Section 5.08
|
Merger
|
53
|
Section 5.09
|
Change of Business
|
53
|
Section 5.10
|
Acquisitions
|
53
|
Section 5.11
|
Joint Ventures
|
53
|
Section 5.12
|
Pari Passu Ranking
|
54
|
Section 5.13
|
Negative Pledge
|
54
|
Section 5.14
|
Disposals
|
55
|
Section 5.15
|
Arm’s Length Basis
|
55
|
Section 5.16
|
Loans or Credit
|
56
|
Section 5.17
|
No Guarantees or Indemnities
|
56
|
Section 5.18
|
Financial Indebtedness
|
57
|
Section 5.19
|
Access
|
57
|
Section 5.20
|
Intellectual Property
|
57
|
Section 5.21
|
Amendments
|
58
|
Section 5.22
|
Restricted Payments
|
58
|
Section 5.23
|
Additional Guarantees
|
59
|
ARTICLE VI
|
EVENTS OF DEFAULT
|
59
|
Section 6.01
|
Events of Default
|
59
|
ARTICLE VII
|
THE ADMINISTRATIVE AGENT
|
62
|
Section 7.01
|
Appointment and Authority
|
62
|
Section 7.02
|
Administrative Agent Individually
|
63
|
Section 7.03
|
Duties of Administrative Agent; Exculpatory Provisions
|
63
|
Section 7.04
|
Reliance by Administrative Agent
|
64
|
Section 7.05
|
Delegation of Duties
|
64
|
Section 7.06
|
Resignation of Administrative Agent
|
65
|
Section 7.07
|
Non‑Reliance on Administrative Agent and Other Lenders
|
66
|
ARTICLE VIII
|
MISCELLANEOUS
|
66
|
Section 8.01
|
Notices
|
66
|
Section 8.02
|
Waivers; Amendments
|
67
|
Section 8.03
|
Expenses; Indemnity; Damage Waiver
|
68
|
Section 8.04
|
Successors and Assigns
|
70
|
Section 8.05
|
Survival
|
71
|
Section 8.06
|
Counterparts; Integration; Effectiveness
|
71
|
Section 8.07
|
Severability
|
72
|
Section 8.08
|
Right of Setoff
|
72
|
Section 8.09
|
Governing Law; Jurisdiction; Consent to Service of Process
|
72
|
Section 8.10
|
Waiver of Jury Trial
|
73
|
Section 8.11
|
Headings
|
74
|
Section 8.12
|
Confidentiality
|
74
|
Section 8.13
|
Interest Rate Limitation
|
75
|
Section 8.14
|
No Waiver; Remedies
|
75
|
Section 8.15
|
USA Patriot Act Notice and “Know Your Customer” Provisions
|
75
|
Section 8.16
|
Judgment Currency
|
75
|
Section 8.17
|
Independence of Covenants
|
76
|
Section 8.18
|
No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders
|
76
|
SCHEDULES:
|
||
Schedule 1.01
|
-
|
Commitment
|
Schedule 3.08
|
-
|
Filing or Stamp Tax
|
Schedule 3.13
|
-
|
Subsidiaries
|
EXHIBITS:
|
||
Exhibit A
|
‑
|
Form of Guarantee
|
Exhibit B
|
‑
|
Form of Borrowing Request
|
Exhibit C
|
‑
|
Form of Note
|
Exhibit D
|
‑
|
Form of Compliance Certificate
|
Exhibit E
|
‑
|
Confidentiality Agreement
|
Exhibit F
|
‑
|
Form of Borrower Pledge Agreement
|
Exhibit G
|
‑
|
Form of CME NV Pledge Agreement
|
Exhibit H
|
‑
|
Form of Amended Intercreditor Agreement
|
(i) | for which a recognised trading market exists; |
(ii) | issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State; |
(iii) | which matures within one year after the relevant date of calculation; and |
(iv) | which has a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating; |
(1) | if the 2017 PIK Priority Condition exists, to offer to prepay the outstanding 2017 PIK Notes as provided under Section 4.9 of the 2017 PIK Notes Indenture, and to the extent that any “Excess Proceeds” (as defined in the 2017 PIK Indenture) remain following such application of funds on the Asset Disposition Purchase Date (as defined in the 2017 PIK Indenture), then Borrower shall apply such remaining amount to prepay the Loans and the Term Loans, on a pro rata basis; |
(2) | if the 2017 PIK Priority Condition does not exist, to prepay, the Loans and the Term Loans on a pro rata basis; |
(1) | the end of the Financial Year ending on December 31, 2015; and |
(2) | the end of each subsequent Financial Year, |
(1) | the end of the Accounting Quarter ending on September 30, 2015; and |
(2) | the end of each subsequent Accounting Quarter, |
Test Date
|
Minimum Cashflow Cover Ratio
|
December 31, 2015
|
0.250 to 1.00
|
March 31, 2016
|
0.300 to 1.00
|
June 30, 2016
|
0.350 to 1.00
|
September 30, 2016
|
0.400 to 1.00
|
December 31, 2016
|
0.425 to 1.00
|
March 31, 2017
|
0.450 to 1.00
|
June 30, 2017
|
0.500 to 1.00
|
September 30, 2017
|
0.500 to 1.00
|
December 31, 2017
|
0.500 to 1.00
|
March 31, 2018
|
0.525 to 1.00
|
June 30, 2018
|
0.600 to 1.00
|
September 30, 2018
|
0.650 to 1.00
|
December 31, 2018
|
0.700 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
Test Date
|
Minimum Interest Cover Ratio
|
December 31, 2015
|
0.75 to 1.00
|
March 31, 2016
|
0.75 to 1.00
|
June 30, 2016
|
0.80 to 1.00
|
September 30, 2016
|
0.80 to 1.00
|
December 31, 2016
|
0.85 to 1.00
|
March 31, 2017
|
0.85 to 1.00
|
June 30, 2017
|
0.90 to 1.00
|
September 30, 2017
|
0.90 to 1.00
|
December 31, 2017
|
0.95 to 1.00
|
March 31, 2018
|
1.00 to 1.00
|
June 30, 2018
|
1.10 to 1.00
|
September 30, 2018
|
1.25 to 1.00
|
December 31, 2018
|
1.35 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
Test Date
|
Maximum Consolidated Total Leverage Ratio
|
December 31, 2015
|
12.50 to 1.00
|
March 31, 2016
|
12.00 to 1.00
|
June 30, 2016
|
11.50 to 1.00
|
September 30, 2016
|
11.00 to 1.00
|
December 31, 2016
|
11.00 to 1.00
|
March 31, 2017
|
10.50 to 1.00
|
June 30, 2017
|
10.50 to 1.00
|
September 30, 2017
|
10.00 to 1.00
|
December 31, 2017
|
10.00 to 1.00
|
March 31, 2018
|
9.50 to 1.00
|
June 30, 2018
|
9.50 to 1.00
|
September 30, 2018
|
9.00 to 1.00
|
December 31, 2018
|
9.00 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
(1) | no Event of Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition; |
(2) | in the case of acquisition of a company or partnership, it is incorporated with limited liability or is a limited liability partnership and it is engaged in a business substantially the same as that carried on by the Group; and |
(3) | the Total Purchase Price for such acquisition, when aggregated with the Total Purchase Price for any other acquisitions under this paragraph (b)(i) does not in any Financial Year of Borrower exceed $5,000,000 or its equivalent; |
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD, as Borrower
|
||
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
TIME WARNER INC., as Administrative Agent
|
||
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
TIME WARNER INC., as Lender
|
||
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
TIME WARNER MEDIA HOLDINGS B.V., as Lender
|
||
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
Lender
|
Commitment Amount
|
Company
|
Jurisdiction of Organization
|
Ownership/Voting Interest
|
BTV Media Group EAD
|
Bulgaria
|
94%
|
Media Pro Sofia EOOD*
|
Bulgaria
|
100%
|
Radiocompany C.J. OOD
|
Bulgaria
|
69.56%
|
Media Pro Audiovizual d.o.o.*
|
Croatia
|
100%
|
Nova TV d.d.
|
Croatia
|
100%
|
Central European Media Enterprises N.V.
|
Curaçao
|
100%
|
CET 21 spol. s r.o.
|
Czech Republic
|
100%
|
CME Services s.r.o.
|
Czech Republic
|
100%
|
Čertova nevěsta, s.r.o.
|
Czech Republic
|
100%
|
Pro Digital S.R.L.
|
Moldova
|
100%
|
CME Bulgaria B.V.
|
Netherlands
|
94%
|
CME Development Financing B.V.
|
Netherlands
|
100%
|
CME Investments B.V.
|
Netherlands
|
100%
|
CME Media Enterprises B.V.
|
Netherlands
|
100%
|
CME Media Pro B.V.
|
Netherlands
|
100%
|
CME Media Pro Distribution B.V.
|
Netherlands
|
100%
|
CME Programming B.V.
|
Netherlands
|
100%
|
CME Slovak Holdings B.V.
|
Netherlands
|
100%
|
Hollywood Multiplex Operations S.R.L.
|
Romania
|
100%
|
Mediapro Magic Factory S.R.L.
|
Romania
|
100%
|
Media Pro Distribution S.R.L.
|
Romania
|
100%
|
Media Pro International S.A.*
|
Romania
|
100%
|
Mediapro Music Entertainment S.R.L.
|
Romania
|
100%
|
Media Pro Entertainment Romania S.A.
|
Romania
|
100%
|
Pro TV S.A.
|
Romania
|
100%
|
Pro Video S.R.L.
|
Romania
|
100%
|
Studiourile Media Pro S.A.
|
Romania
|
92.21%
|
MARKÍZA-SLOVAKIA, spol. s r.o.
|
Slovak Republic
|
100%
|
Kanal A d.o.o.
|
Slovenia
|
100%
|
MMTV 1 d.o.o.*
|
Slovenia
|
100%
|
POP TV d.o.o.
|
Slovenia
|
100%
|
Produkcija Plus d.o.o.
|
Slovenia
|
100%
|
TELEVIDEO d.o.o.
|
Slovenia
|
100%
|
CME Media Services Limited
|
United Kingdom
|
100%
|
ARTICLE I
|
DEFINITIONS AND ACCOUNTING TERMS
|
1
|
Section 1.01
|
Defined Terms
|
1
|
Section 1.02
|
Terms Generally
|
29
|
Section 1.03
|
Resolution of Drafting Ambiguities
|
29
|
Section 1.04
|
Fluctuations in the Exchange Rate of Currencies
|
30
|
ARTICLE II
|
REIMBURSEMENT AND FEES
|
30
|
Section 2.01
|
Reimbursement
|
30
|
Section 2.02
|
Taxes
|
31
|
Section 2.03
|
Fees
|
32
|
Section 2.04
|
Payments Generally
|
33
|
Section 2.05
|
Obligation Absolute
|
34
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES
|
35
|
Section 3.01
|
Organization; Powers; Authorization; Enforceability
|
35
|
Section 3.02
|
Approvals; No Conflicts
|
35
|
Section 3.03
|
Financial Condition; No Material Adverse Change
|
35
|
Section 3.04
|
Litigation and Environmental Matters
|
36
|
Section 3.05
|
Solvency
|
36
|
Section 3.06
|
Margin Securities
|
36
|
Section 3.07
|
Pari Passu Ranking
|
36
|
Section 3.08
|
Filing or Stamp Tax
|
37
|
Section 3.09
|
Properties
|
37
|
Section 3.10
|
Compliance with Laws and Agreements
|
37
|
Section 3.11
|
Taxes
|
37
|
Section 3.12
|
Disclosure
|
37
|
Section 3.13
|
Subsidiaries
|
38
|
Section 3.14
|
Insurance
|
38
|
Section 3.15
|
Anti-Terrorism Laws; Anti-Corruption Laws
|
38
|
Section 3.16
|
Security Interest and Perfection
|
38
|
Section 3.17
|
Use of Proceeds
|
38
|
Section 3.18
|
Intellectual Property
|
38
|
Section 3.19
|
No Default
|
39
|
ARTICLE IV
|
CONDITIONS
|
39
|
Section 4.01
|
2017 Effective Date
|
39
|
ARTICLE V
|
COVENANTS
|
41
|
Section 5.01
|
Information Undertakings
|
41
|
Section 5.02
|
Notices of Material Events
|
44
|
Section 5.03
|
Use of Proceeds
|
45
|
Section 5.04
|
Financial Covenants
|
45
|
Section 5.05
|
Authorizations
|
49
|
Section 5.06
|
Compliance with Laws
|
49
|
Section 5.07
|
Taxation
|
49
|
Section 5.08
|
Merger
|
50
|
Section 5.09
|
Change of Business
|
50
|
Section 5.10
|
Acquisitions
|
50
|
Section 5.11
|
Joint Ventures
|
50
|
Section 5.12
|
Pari Passu Ranking
|
51
|
Section 5.13
|
Negative Pledge
|
51
|
Section 5.14
|
Disposals
|
52
|
Section 5.15
|
Arm’s Length Basis
|
52
|
Section 5.16
|
Loans or Credit
|
53
|
Section 5.17
|
No Guarantees or Indemnities
|
53
|
Section 5.18
|
Financial Indebtedness
|
54
|
Section 5.19
|
Access
|
54
|
Section 5.20
|
Intellectual Property
|
54
|
Section 5.21
|
Amendments
|
55
|
Section 5.22
|
Restricted Payments
|
55
|
Section 5.23
|
Additional Guarantees
|
56
|
Section 5.24
|
Specified Asset Sales
|
56
|
Section 5.25
|
2015 Refinancing Covenant
|
57
|
ARTICLE VI
|
EVENTS OF DEFAULT
|
58
|
Section 6.01
|
Events of Default
|
58
|
ARTICLE VII
|
[INTENTIONALLY OMITTED]
|
61
|
ARTICLE VIII
|
MISCELLANEOUS
|
61
|
Section 8.01
|
Notices
|
61
|
Section 8.02
|
Waivers; Amendments
|
62
|
Section 8.03
|
Expenses; Indemnity; Damage Waiver
|
62
|
Section 8.04
|
Successors and Assigns
|
63
|
Section 8.05
|
Survival
|
64
|
Section 8.06
|
Counterparts; Integration; Effectiveness
|
64
|
Section 8.07
|
Severability
|
64
|
Section 8.08
|
Governing Law; Jurisdiction; Consent to Service of Process
|
64
|
Section 8.09
|
Waiver of Jury Trial
|
65
|
Section 8.10
|
Headings
|
66
|
Section 8.11
|
Confidentiality
|
66
|
Section 8.12
|
Interest Rate Limitation
|
67
|
Section 8.13
|
No Waiver; Remedies
|
67
|
Section 8.14
|
Judgment Currency
|
67
|
Section 8.15
|
Independence of Covenants
|
68
|
Section 8.16
|
No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders
|
68
|
Schedule 3.08
|
‑
|
Filing or Stamp Tax
|
Schedule 3.13
|
‑
|
Subsidiaries
|
EXHIBITS:
|
||
Exhibit A
|
‑
|
Form of Guarantee
|
Exhibit B
|
‑
|
Form of Compliance Certificate
|
Exhibit C
|
‑
|
Confidentiality Agreement
|
Exhibit D
|
‑
|
Form of Borrower Pledge Agreement
|
Exhibit E
|
‑
|
Form of CME NV Pledge Agreement
|
Exhibit F
|
‑
|
Form of Amended Intercreditor Agreement
|
(c) | commercial paper not convertible or exchangeable to any other security: |
(i) | for which a recognised trading market exists; |
(ii) | issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State; |
(iii) | which matures within one year after the relevant date of calculation; and |
(iv) | which has a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating; |
(a) | after adding back any amount attributable to amortization or depreciation expenses; |
(b) | before taking into account any Exceptional Items; |
(c) | before taking into account any Pension Items; |
(d) | excluding the charge to profit represented by the expensing of stock-based compensation; and |
(e) | excluding the results from discontinued operations; |
(a) | its jurisdiction of incorporation; |
(b) | any jurisdiction where it conducts a substantive part of its business; and |
(c) | the jurisdiction whose laws govern the perfection of any of the Security granted under the Security Documents entered into by it. |
(1)
|
the end of the Financial Year ending on December 31, 2014; and
|
(2)
|
the end of each subsequent Financial Year,
|
(1)
|
the end of the Accounting Quarter ending on September 30, 2014; and
|
(2)
|
the end of each subsequent Accounting Quarter,
|
Test Date
|
Minimum Cashflow Cover Ratio
|
December 31, 2015
|
0.250 to 1.00
|
March 31, 2016
|
0.300 to 1.00
|
June 30, 2016
|
0.350 to 1.00
|
September 30, 2016
|
0.400 to 1.00
|
December 31, 2016
|
0.425 to 1.00
|
March 31, 2017
|
0.450 to 1.00
|
June 30, 2017
|
0.500 to 1.00
|
September 30, 2017
|
0.500 to 1.00
|
December 31, 2017
|
0.500 to 1.00
|
March 31, 2018
|
0.525 to 1.00
|
June 30, 2018
|
0.600 to 1.00
|
September 30, 2018
|
0.650 to 1.00
|
December 31, 2018
|
0.700 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
Test Date
|
Minimum Interest Cover Ratio
|
December 31, 2014
|
0.60 to 1.00
|
March 31, 2015
|
0.65 to 1.00
|
June 30, 2015
|
0.65 to 1.00
|
September 30, 2015
|
0.65 to 1.00
|
December 31, 2015
|
0.75 to 1.00
|
March 31, 2016
|
0.75 to 1.00
|
June 30, 2016
|
0.80 to 1.00
|
September 30, 2016
|
0.80 to 1.00
|
December 31, 2016
|
0.85 to 1.00
|
March 31, 2017
|
0.85 to 1.00
|
June 30, 2017
|
0.90 to 1.00
|
September 30, 2017
|
0.90 to 1.00
|
December 31, 2017
|
0.95 to 1.00
|
March 31, 2018
|
1.00 to 1.00
|
June 30, 2018
|
1.10 to 1.00
|
September 30, 2018
|
1.25 to 1.00
|
December 31, 2018
|
1.35 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
Test Date
|
Maximum Consolidated Total Leverage Ratio
|
December 31, 2014
|
15.50 to 1.00
|
March 31, 2015
|
14.50 to 1.00
|
June 30, 2015
|
13.50 to 1.00
|
September 30, 2015
|
13.50 to 1.00
|
December 31, 2015
|
12.50 to 1.00
|
March 31, 2016
|
12.00 to 1.00
|
June 30, 2016
|
11.50 to 1.00
|
September 30, 2016
|
11.00 to 1.00
|
December 31, 2016
|
11.00 to 1.00
|
March 31, 2017
|
10.50 to 1.00
|
June 30, 2017
|
10.50 to 1.00
|
September 30, 2017
|
10.00 to 1.00
|
December 31, 2017
|
10.00 to 1.00
|
March 31, 2018
|
9.50 to 1.00
|
June 30, 2018
|
9.50 to 1.00
|
September 30, 2018
|
9.00 to 1.00
|
December 31, 2018
|
9.00 to 1.00
|
Each Quarter Date thereafter
|
Levels are set pursuant to Section 5.04(b)(iv)
|
(1) | no Event of Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition; |
(2) | in the case of acquisition of a company or partnership, it is incorporated with limited liability or is a limited liability partnership and it is engaged in a business substantially the same as that carried on by the Group; and |
(3) | the Total Purchase Price for such acquisition, when aggregated with the Total Purchase Price for any other acquisitions under this paragraph (b)(i) does not in any Financial Year of Borrower exceed $5,000,000 or its equivalent; |
(i)
|
if to Borrower or any other Reimbursement Party:
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD, as Borrower
|
|||
|
|
|
|
|
By:
|
/s/ David Sturgeon
|
|
|
|
Name: David Sturgeon
|
|
|
|
Title: Chief Financial Officer
|
TIME WARNER INC., as CME Credit Guarantor and Agent
|
|||
|
|
|
|
|
By:
|
/s/ Edward B. Ruggiero
|
|
|
|
Name: Edward B. Ruggiero
|
|
|
|
Title: Senior Vice President & Treasurer
|
Company
|
Jurisdiction of Organization
|
Ownership/Voting Interest
|
BTV Media Group EAD
|
Bulgaria
|
94%
|
Media Pro Sofia EOOD*
|
Bulgaria
|
100%
|
Radiocompany C.J. OOD
|
Bulgaria
|
69.56%
|
Media Pro Audiovizual d.o.o.*
|
Croatia
|
100%
|
Nova TV d.d.
|
Croatia
|
100%
|
Central European Media Enterprises N.V.
|
Curaçao
|
100%
|
CET 21 spol. s r.o.
|
Czech Republic
|
100%
|
CME Services s.r.o.
|
Czech Republic
|
100%
|
Čertova nevěsta, s.r.o.
|
Czech Republic
|
100%
|
Pro Digital S.R.L.
|
Moldova
|
100%
|
CME Bulgaria B.V.
|
Netherlands
|
94%
|
CME Development Financing B.V.
|
Netherlands
|
100%
|
CME Investments B.V.
|
Netherlands
|
100%
|
CME Media Enterprises B.V.
|
Netherlands
|
100%
|
CME Media Pro B.V.
|
Netherlands
|
100%
|
CME Media Pro Distribution B.V.
|
Netherlands
|
100%
|
CME Programming B.V.
|
Netherlands
|
100%
|
CME Slovak Holdings B.V.
|
Netherlands
|
100%
|
Hollywood Multiplex Operations S.R.L.
|
Romania
|
100%
|
Mediapro Magic Factory S.R.L.
|
Romania
|
100%
|
Media Pro Distribution S.R.L.
|
Romania
|
100%
|
Media Pro International S.A.*
|
Romania
|
100%
|
Mediapro Music Entertainment S.R.L.
|
Romania
|
100%
|
Media Pro Entertainment Romania S.A.
|
Romania
|
100%
|
Pro TV S.A.
|
Romania
|
100%
|
Pro Video S.R.L.
|
Romania
|
100%
|
Studiourile Media Pro S.A.
|
Romania
|
92.21%
|
MARKÍZA-SLOVAKIA, spol. s r.o.
|
Slovak Republic
|
100%
|
Kanal A d.o.o.
|
Slovenia
|
100%
|
MMTV 1 d.o.o.*
|
Slovenia
|
100%
|
POP TV d.o.o.
|
Slovenia
|
100%
|
Produkcija Plus d.o.o.
|
Slovenia
|
100%
|
TELEVIDEO d.o.o.
|
Slovenia
|
100%
|
CME Media Services Limited
* In liquidation
|
United Kingdom
|
100%
|
GUARANTEE
|
1
|
|
2.
|
LIMITATION ON LIABILITY
|
2
|
3.
|
NO SUBROGATION
|
2
|
4.
|
RELEASE AND DISCHARGE
|
2
|
5.
|
TERMINATION; REINSTATEMENT
|
3
|
6.
|
NO SETOFF OR DEDUCTIONS; TAXES; PAYMENTS
|
3
|
7.
|
RIGHTS OF CME CREDIT GUARANTOR
|
3
|
8.
|
CERTAIN WAIVERS
|
4
|
9.
|
OBLIGATIONS INDEPENDENT
|
4
|
10.
|
SUBORDINATION
|
5
|
11.
|
STAY OF ACCELERATION
|
5
|
12.
|
EXPENSES
|
5
|
13.
|
MISCELLANEOUS
|
5
|
14.
|
CONDITION OF BORROWER
|
5
|
15.
|
REPRESENTATIONS AND WARRANTIES
|
6
|
16.
|
INDEMNIFICATION AND SURVIVAL
|
7
|
17.
|
GOVERNING LAW
|
7
|
18.
|
ASSIGNMENT
|
7
|
19.
|
JURISDICTION
|
8
|
20.
|
NOTICE; SERVICE OF PROCESS
|
8
|
21.
|
WAIVER OF JURY TRIAL
|
8
|
22.
|
JUDGMENT CURRENCY
|
8
|
23.
|
CONCERNING JOINT AND SEVERAL LIABILITY OF THE SUBSIDIARY GUARANTORS
|
9
|
24.
|
ADDITIONAL SUBSIDIARY GUARANTORS
|
10
|
25.
|
COMPLIANCE WITH REIMBURSEMENT AGREEMENT
|
10
|
26.
|
PARALLEL DEBT
|
10
|
SCHEDULE: FORM OF GUARANTEE JOINDER AGREEMENT |
14
|
(1) | CENTRAL EUROPEAN MEDIA ENTERPRISES N.V. a company incorporated under the laws of the former Netherlands Antilles and existing under the laws of Curaçao ("CME NV"); |
(2) | CME MEDIA ENTERPRISES B.V. a private limited liability company incorporated and existing under the laws of the Netherlands ("CME BV", and together with CME NV and any other entity that becomes a guarantor hereunder pursuant to clause 24 hereof, collectively, the "Subsidiary Guarantors" and each, a "Subsidiary Guarantor") as guarantors; and |
(3) | TIME WARNER INC. as guarantor and as agent under the Reimbursement Agreement (as defined below) (the "CME Credit Guarantor"). |
(a) | This Guarantee will be automatically and unconditionally released without further action on the part of the CME Credit Guarantor (and thereupon shall terminate and be discharged and be of no further force and effect) upon full and final payment and performance of all Guaranteed Obligations (other than Unmatured Surviving Obligations). |
(b) | So long as no Event of Default has occurred and is continuing, the guarantee of any Subsidiary Guarantor (together with any rights of contribution, subrogation or other similar rights against the Subsidiary Guarantor) will be automatically and unconditionally released without further action on the part of the CME Credit Guarantor (and thereupon shall terminate and be discharged and be of no further force and effect) so long as: |
(i) | the Subsidiary Guarantor is disposed of (whether by amalgamation, merger, demerger, split‑up or consolidation, the sale, transfer or other disposal of all its Capital Stock or the sale, transfer or other disposal of all or substantially all of its assets (other than by a lease)) to an entity other than the Borrower or any Subsidiary of the Borrower in compliance with the terms of the Reimbursement Agreement; |
(ii) | such Subsidiary Guarantor is simultaneously and unconditionally released from its obligations in respect of all other Indebtedness of the Borrower or any other Subsidiary of the Borrower; and |
(iii) | the proceeds from such sale, transfer or other disposition are used for the purposes permitted or required by the Reimbursement Agreement. |
(a) | amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Guaranteed Obligations or any part thereof; and |
(b) | release or substitute one or more of any endorsers or other guarantors of any of the Guaranteed Obligations. |
(a) | any defence arising by reason of any disability or other defence of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the CME Credit Guarantor) of the liability of the Borrower; |
(b) | any defence based on any claim that such Subsidiary Guarantor's obligations exceed or are more burdensome than those of the Borrower; |
(c) | the benefit of any statute of limitations affecting such Subsidiary Guarantor's liability hereunder; |
(d) | any right to require the CME Credit Guarantor to proceed against the Borrower or pursue any other remedy in the CME Credit Guarantor's power whatsoever; and |
(e) | to the fullest extent permitted by law, any and all other defences or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. |
(a) | it: |
(A) | is validly existing and (if applicable) in good standing under the laws of the jurisdiction of its organisation; |
(ii) | this Guarantee is within its powers and has been duly authorised by all necessary corporate and, if required, shareholder action; |
(b) | this Guarantee has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to: |
(i) | the effects of bankruptcy, insolvency, moratorium, reorganisation, fraudulent conveyance or other similar laws affecting creditors' rights generally; |
(ii) | general principles of equity; and |
(iii) | implied covenants of good faith and fair dealing; |
(c) | no authorisation or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by it of this Guarantee, or the consummation of the transactions contemplated hereby, except such as have been obtained or made and are in full force and effect; |
(d) | the execution, delivery and performance by it of this Guarantee and the consummation of the transactions contemplated hereby: |
(i) | do not contravene: |
(A) | any law applicable to it, in any material respect; or |
(B) | its organisational documents; and |
(ii) | will not violate or result in a default or require any consent or approval under any material indenture, agreement or other instrument binding upon it or its property, or give rise to a right thereunder to require any payment to be made by it; |
(e) | it is, and immediately after giving effect to this Guarantee and all the transactions contemplated hereby will be, Solvent; |
(f) | its payment obligations under this Guarantee rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally; and |
(g) | under the law of its jurisdiction of incorporation, it is not necessary that this Guarantee be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to this Guarantee or the transactions contemplated hereby (other than any such stamp, registration or similar tax that has been paid as of the date of this Guarantee or any nominal stamp, registration or similar tax pursuant to Curaçao law). |
(a) | bind each Subsidiary Guarantor and its successors and assigns, provided that no Subsidiary Guarantor may assign its rights or obligations under this Guarantee without the prior written consent of the CME Credit Guarantor (and any attempted assignment without such consent shall be void); and |
(b) | enure to the benefit of the CME Credit Guarantor, and its respective successors and permitted assigns and the CME Credit Guarantor may, without notice to any Subsidiary Guarantor and without affecting any Subsidiary Guarantor's obligations hereunder, assign, sell or grant participations in the Guaranteed Obligations and this Guarantee, in whole or in part, in each case, to the extent permitted under the Reimbursement Agreement. |
(a) | certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver; and |
(b) | acknowledges that it and the other parties hereto have been induced to enter into this Guarantee by, among other things, the mutual waivers and certifications in this clause. |
(a) | The Subsidiary Guarantors' obligations hereunder to make payments in Dollars (pursuant to such obligation, the "Obligation Currency") shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the CME Credit Guarantor of the full amount of the Obligation Currency expressed to be payable to the CME Credit Guarantor under this Guarantee. If, for the purpose of obtaining or enforcing judgment against any Subsidiary Guarantor in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the "Judgment Currency") an amount due in the Obligation Currency, the conversion shall be made at the rate of exchange (as quoted by the CME Credit Guarantor or if the CME Credit Guarantor does not quote a rate of exchange on such currency, by a known dealer in such currency designated by the CME Credit Guarantor) determined, in each case, as of the Business Day immediately preceding the day on which the judgment is given (such Business Day being hereinafter referred to as the "Judgment Currency Conversion Date"); |
(b) | if there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Subsidiary Guarantors covenant and agree to pay, or cause to be paid, either: |
(i) | such additional amounts, if any (but in any event not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date; or |
(ii) | such amount, in the Obligation Currency, equal to the amount of the applicable judgment denominated in the Judgment Currency, converted to the Obligation Currency in accordance with the Judgment Currency Conversion Date; and |
(c) | for purposes of determining the rate of exchange for this clause, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency. |
(a) | For the purpose of this clause 26, "Corresponding Debt" means any amount which any Subsidiary Guarantor owes under or in connection with under this Guarantee, other than the Parallel Debt, and "Parallel Debt" means any amount which a Subsidiary Guarantor owes to the CME Credit Guarantor under this clause 26. Each Subsidiary Guarantor irrevocably and unconditionally undertakes to pay to the CME Credit Guarantor amounts equal to, and in the currency or currencies of, its Corresponding Debt. The Parallel Debt of each Subsidiary Guarantor: |
(i) | shall become due and payable at the same time as its Corresponding Debt; and |
(ii) | is independent and separate from, and without prejudice to, its Corresponding Debt. |
(b) | For the purposes of this clause 26, the CME Credit Guarantor: |
(i) | is the independent and separate creditor of each Parallel Debt; |
(ii) | acts in its own name and not as agent, representative or trustee of the Lenders and its claims in respect of each Parallel Debt and any security in connection with such claims shall not be held on trust; and |
(iii) | shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding). |
(c) | The Parallel Debt of a Subsidiary Guarantor shall be (A) decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged and (B) increased to the extent to that its Corresponding Debt has increased, and its Corresponding Debt shall be (x) decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged, and (y) increased to the extent that its Parallel Debt has increased, in each case provided that the Parallel Debt of a Subsidiary Guarantor shall never exceed its Corresponding Debt. |
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V.
|
||
By: |
/s/ Daniel Penn
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Name:
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Daniel Penn |
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Title:
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Managing Director
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Address:
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Schottegatweg Oost 44
Willemstad, Curacao
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CME MEDIA ENTERPRISES B.V.
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By: |
/s/ David Sturgeon
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Name:
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David Sturgeon |
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Title:
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Managing Director
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Address:
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Dam 5B, 1012 JS Amsterdam
The Netherlands
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TIME WARNER INC.
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By: |
/s/ Edward B. Ruggiero
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Name:
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Edward B. Ruggiero
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Title:
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Senior Vice President & Treasurer
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To: | Time Warner Inc. (as CME Credit Guarantor and agent under the Reimbursement Agreement referenced below): |
1. | the undersigned is a [corporation incorporated] [a general/limited partnership formed] [an entity constituted] on or prior to the date hereof; |
2. | the financial success of the undersigned is expected to depend in whole or in part upon the financial success of the Borrower; |
3. | the undersigned will receive substantial direct and indirect benefits from the Borrower’s entry into certain refinancing documents described in the Reimbursement Agreement; and |
4. | the undersigned wishes to become party to the Guarantee and to guarantee the full and prompt payment of the Guaranteed Obligations. |
By: |
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Name:
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Title:
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(a) | the "Amended Intercreditor Agreement": the intercreditor agreement dated the twenty-first day of July two thousand and six (and amended and restated on the sixteenth day of May two thousand and seven, on the twenty-second day of August two thousand and seven, the tenth day of March two thousand and eight, the seventeenth day of September two thousand and nine, the twenty-ninth day of September two thousand nine, the twenty-first day of October two thousand and ten, the eighteenth day of February two thousand and eleven, the eighth day of October two thousand and twelve, the second day of May two thousand and fourteen and as further amended and restated on the date of this Pledge Agreement) by and between (among others) Central European Media Enterprises Ltd., the Pledgor, the Company, Citibank, N.A., London Branch (in its capacity as trustee under the 2010 Indenture), BNP Paribas Trust Corporation UK Limited (in its capacity as security agent under the 2010 Indenture), Deutsche Bank Trust Company Americas (in its capacity as trustee and security agent under the 2011 Indenture), Time Warner Inc. (in its capacity as security agent under the 2014 Term Loan and the 2014 RCF (as defined therein)), Deutsche Bank Trust Company Americas (in its capacity as trustee and security agent under the 2014 Indenture) and Pledgee (in its capacity as guarantor and agent under the Reimbursement Agreement (as defined therein)); |
(b) | an "Event of Default": each Event of Default as defined the Reimbursement Agreement which is continuing; |
(c) | an "Event of Statutory Default": each Event of Default which also constitutes a default (verzuim) in the fulfilment of the Secured Obligations within the meaning of in Article 6:81 of the Curaçao Civil Code (Burgerlijk Wetboek) ("CCC"); |
(e) | the "Guarantee": the guarantee dated the date of this Pledge Agreement by and between the Company as subsidiary guarantor and the Pledgee as guarantor and agent under the Reimbursement Agreement; |
(f) | a “Parallel Debt”: a Parallel Debt (as defined in Section 26 of the Guarantee); |
(g) | the "Reimbursement Agreement": the reimbursement agreement dated the fourteenth day of November two thousand and fourteen by and between the Pledgor, as the borrower and the Pledgee as CME Credit Guarantor and agent. |
(h) | the "Right of Pledge": the sixth priority right of pledge (openbaar pandrecht zesde in rang) in respect of the Shares established in this Pledge Agreement; |
(i) | the "Secured Obligations": all present and future obligations and liabilities consisting of monetary payment obligations (verbintenissen tot betaling van een geldsom) of the Company to the Pledgee, whether actual or contingent, whether owed jointly, severally or in any other capacity whatsoever, under or in connection with its Parallel Debt, provided that no obligation or liability shall be included in the definition of “Secured Obligations” to the extent that, if it were so included, the Security (or any part thereof) or any provision of this Pledge Agreement would be unlawful or prohibited by any applicable law; |
(j) | a "Voting Event": the occurrence of an Event of Statutory Default of which the Pledgee has given notice to the Pledgor and the Company, in which notice the Pledgee notifies the Pledgor that it wishes to exercise the Voting Rights (as defined below); |
(k) | the "2010 Indenture": the indenture dated the twenty-first day of October two thousand and ten, by and between (among others) CET 21 spol s r.o. as issuer, and Citibank, N.A., London Branch as trustee; |
(l) | the “2011 Indenture”: the indenture dated the eighteenth day of February two thousand and eleven, by and between (among others) Central European Media Enterprises Ltd. as issuer, the Pledgor and the Company as guarantors, and Deutsche Bank Trust Company Americas as trustee, security agent, paying agent, conversion agent, transfer agent and registrar; |
(m) | the “2014 Term Loan”: the term loan credit agreement dated the twenty eighth of February two thousand and fourteen, as amended and restated on fourteenth day of November two thousand and fourteen, by and between Central European Media Enterprises Ltd. as borrower, the lenders party thereto from time to time and Time Warner Inc. as security agent and administrative agent; |
(n) | the “2014 RCF”: the revolving loan credit facility agreement dated second day of May two thousand and fourteen, as amended and restated on fourteenth day of November two thousand and fourteen, by and between Central European Media Enterprises Ltd. as borrower, the lenders party thereto from time to time and Time Warner Inc. as security agent and administrative agent; and |
(o) | the “2014 Indenture”: the indenture dated second day of May two thousand and fourteen by and between (among others) the Pledgor as issuer, the Company as guarantor and Deutsche Bank Trust Company Americas, as trustee, paying agent and transfer agent and registrar. |
2.1 | As security for the Secured Obligations, the Pledgor hereby agrees to grant and hereby grants to the Pledgee a disclosed right of pledge with a sixth priority (openbaar pandrecht zesde in rang) (on the date hereof) in respect of the Shares, which Right of Pledge the Pledgee agrees to accept and hereby so accepts. |
2.2 | The Right of Pledge is one and indivisible (één en ondeelbaar). The Right of Pledge shall not be affected by one or more but not all of the Secured Obligations being discharged or the Secured Obligations being amended. The Right of Pledge includes a right of pledge in respect of all accessory rights (afhankelijke rechten) and all ancillary rights (nevenrechten) attached to the Shares. |
2.3 | The Pledgor shall, if and when requested by the Pledgee in writing, execute such further encumbrances and assurances, and do all such acts and things as are reasonably necessary or as the Pledgee may reasonably require over or in relation to the Shares to maintain, perfect or protect the security rights created by this Pledge Agreement, such that this Pledge Agreement will continue to constitute a sixth priority right of pledge over the Shares, until payment in full of the Secured Obligations or termination of this Pledge Agreement in accordance with Section 8 of this Pledge Agreement. |
2.4 | By co-signing this Pledge Agreement, the Company acknowledges the Right of Pledge created by this Pledge Agreement, as provided in article 2:113 of the CCC. |
2.5 | The Company shall register in the Company’s shareholders’ register that the Shares are encumbered with a right of pledge in favor of the Pledgee and that, subject to Section 3 of this Pledge Agreement, the Pledgee has the Voting Rights. |
3.
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Voting rights
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3.1. | The voting and other consensual rights and similar rights or powers attaching to the Shares or any part thereof (the "Voting Rights") shall be vested in (toekomen aan) the Pledgee under the conditions precedent (opschortende voorwaarden) of (i) the occurrence of a Voting Event which is continuing and (ii) the termination and/or release of the Existing Rights of Pledge. Until the occurrence of a Voting Event and subject to the termination and/or release of the Existing Rights of Pledge, the Pledgor may exercise any and all such Voting Rights, save: |
(a) | that no such exercise may violate or be inconsistent with the express terms or purpose of this Pledge Agreement, the Existing Rights of Pledge, the Reimbursement Agreement and/or the Guarantee; |
(b) | that no such exercise may have the effect of impairing the position or interests of the Pledgee; and |
(c) | as set out in Section 3.2 below. |
3.2. | Upon the occurrence of a Voting Event and subject to the termination or release of the Existing Rights of Pledge any and all rights of the Pledgor to exercise the Voting Rights which it is entitled to exercise pursuant to Section 3.1 above shall cease automatically without further notice to the Pledgor being required and the Pledgee shall have the sole and exclusive right, but not the obligation, and authority to exercise such Voting Rights and shall be entitled to exercise or refrain from exercising such rights in such manner as the Pledgee may in its absolute discretion deem fit. |
3.3. | By signing this Pledge Agreement, the Company confirms (and the other parties agree) that a written notice from the Pledgee to the Company stating that a Voting Event has occurred, shall be sufficient for the Company to accept the Pledgee as being exclusively entitled to such rights and other powers which it is entitled to exercise pursuant to this Section 3 upon the occurrence of such a Voting Event and subject to the termination and/or release of the Existing Rights of Pledge. |
3.4. | In addition and without prejudice to the obligations of the Pledgor pursuant to the Pledge Agreement, the Reimbursement Agreement and the Guarantee, the Pledgor and the Company agrees to notify the Pledgee in writing immediately of any event or circumstance which could be of material importance to the Pledgee with a view to the preservation and exercise of the Pledgee’s rights under or pursuant to this Pledge Agreement, such as (without limitation) the filing of a petition for the bankruptcy of the Pledgor, the filing of a petition for a moratorium of payments by the Pledgor, attachment or garnishment of the Pledgor’s assets, the termination of any one of the Pledgor’s commercial activities or its dissolution. |
3.5. | During the term of the Right of Pledge, the foregoing provisions of this Section 3 with respect to the Voting Rights on the Present Shares also apply to the Future Shares. In addition, the Pledgor and the Pledgee shall, if reasonably practicable at the time of or, if not practicable at such time, as soon as reasonably practicable, after the acquisition of such Future Shares, arrange that the attribution of the Voting Rights attaching thereto shall be ratified if that is reasonably deemed necessary, to enable the Pledgee to exercise such Voting Rights upon the occurrence of the condition precedent as provided in Section 3.1 of this Pledge Agreement. If such ratification is, at the Pledgee's sole discretion, not obtained in time, the Pledgor shall fully co-operate in the taking of such other reasonable measures relating to such transfer of voting rights as are proposed by the Pledgee. |
4.
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Authority to collect
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4.1. | The authority to collect dividends, distributions from reserves, repayments of capital and all other distributions and payments in any form, which, at any time, during the term of the Right of Pledge, become payable on any one or more of the Shares, shall accrue to the Pledgee, as provided for in Section 3:246 of the CCC, subject to the termination and/or release of the Existing Rights of Pledge. |
4.2. | In derogation of the provisions of paragraph 1, the Pledgee hereby grants approval to the Pledgor to collect all dividends, distributions from reserves, repayments of capital and all other distributions and payments in any form, which, at any time, during the term of the Right of Pledge, become payable on any one or more of the Shares, subject to the termination and/or release of the Existing Rights of Pledge. |
4.3. | The Pledgee may terminate the authorization mentioned in section 4.2 upon occurrence of an Event of Default only. Termination of the authorization is made by written statement to that effect, by the Pledgee to the Pledgor. The Pledgee shall inform the Company of the termination in writing. |
5.
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Representations and warranties
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5.1. | The Pledgor hereby represents and warrants that the following is true and correct on the date of this Pledge Agreement: |
a. | the Company is a public company, incorporated under the laws of the former Netherlands Antilles by notarial deed drawn up before Gerard Christoffel Antonius Smeets, civil law notary officiating in Curaçao, on the fourteenth day of July nineteen hundred and ninety-four. A copy of the present articles of association is attached to this Pledge Agreement (Annex I). The Company is currently registered with the commercial register of the Chamber of Commerce and Industries of Curaçao under number 67248. A copy of the extract from the commercial register is attached to this Pledge Agreement (Annex II); |
b. | the Company has not been dissolved, and no resolution has been adopted to dissolve the Company, nor has any request therefore been filed, nor has any notice by the Chamber of Commerce, as described in Section 2:25 of the CCC, been received. The Company has not been declared bankrupt nor has a suspension of payment been granted, nor have any requests thereto been filed; |
c. | the shareholders' register is accurate and completely up to date. A copy of the shareholders' register is attached to this Pledge Agreement (Annex III); |
d. | the entire nominal share capital of the Company consists of the Present Shares; all of the Present Shares are fully paid-up; the Company has not granted any rights to subscribe for shares in its capital which have not yet been exercised; |
e. | the Pledgor has a complete and unencumbered right to the Present Shares, with the exception of the Existing Rights of Pledge; |
f. | the Present Shares are not subject to either (limited) rights or obligations to transfer to third parties or claims based on contracts of any nature and have not been encumbered with any attachments, except for the Existing Rights of Pledge; |
g. | the Pledgor is authorized to establish the Right of Pledge; |
h. | all resolutions and approvals, required for establishing the Right of Pledge, have been adopted and received respectively; |
i. | the obligations of the Pledgor and the Company vis-à-vis the Pledgee, resulting from the Reimbursement Agreement, the Guarantee and this Pledge Agreement (as the case may be) are lawful obligations of the Pledgor and the Company, respectively, and are legally enforceable against the Pledgor and the Company, respectively, subject to the Amended Intercreditor Agreement; |
j. | the assumption and performance by the Pledgor and the Company respectively of the obligations vis-à-vis the Pledgee resulting from the Reimbursement Agreement and this Pledge Agreement are not contrary to any provision of applicable law or any agreement to which the Pledgor or the Company is a party, or by which the Pledgor or the Company is bound in any other way; |
k. | the Pledgor has provided the Pledgee with all information and data with respect to the Present Shares which the Pledgor reasonably believes to be of importance for the Pledgee; and |
l. | no share certificates (aandeelbewijzen) have been issued for the Shares. |
5.2. | Furthermore, the Pledgor hereby declares to have acquired the Present Shares as follows: |
- | as for the number 61, pursuant to the issuance of one share on the nineteenth day of September nineteen hundred and ninety-four. |
6.
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Undertakings by the Pledgor
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6.1. | During the term of the Right of Pledge, the Pledgor shall not alienate, pledge or in any other way encumber the Shares or the rights to acquire Shares without the prior written consent of the Pledgee, except for an encumbrance in accordance with the Reimbursement Agreement or the Amended Intercreditor Agreement. |
6.2. | The Pledgor shall as far as possible provide that the Shares and/or rights to acquire Shares it acquires after execution of this Pledge Agreement shall be pledgeable, and that the transferability thereof shall not be more cumbersome than the transferability of the Shares. |
6.3. | Whenever the Pledgor is aware that the Company is involved in the preparation of a legal merger or demerger as a result of which the Company would cease to exist, the Pledgor shall inform the Pledgee thereof in writing immediately. |
6.4. | Whenever the Pledgor is aware that actions have been taken for the winding-up, dissolution, administration, bankruptcy, suspension of payments or reorganization of the Company, or that an Event of Statutory Default has occurred, the Pledgor shall inform the Pledgee thereof in writing immediately. |
7.
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Exercise of the Right of Pledge
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7.1. | Upon the occurrence of an Event of Statutory Default, the Pledgee has, with due regard to the relevant provisions of the Existing Rights of Pledge, and the Amended Intercreditor Agreement, the right to exercise all rights and powers which the Pledgee has under the laws of Curaçao as holder of a right of pledge over the Shares and the Pledgee shall be authorized to sell the Shares or part thereof, in accordance with Section 3:248 of the CCC, without prejudice to the provision of Section 3:251 of the CCC, in order to recover the proceeds thereof. |
7.2. | In the event the Pledgee enforces the Right of Pledge, the Pledgee shall, with due regard to the relevant provisions of the Existing Rights of Pledge, following payment of the execution costs from the proceeds, allocate the net proceeds to fulfill the Secured Obligations. |
7.3. | The Pledgee does not bear the obligations referred to in Sections 3:249 and 3:252 of the CCC towards others than the Pledgor. |
8.
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Termination
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8.1. | The Pledgee is entitled to terminate (opzeggen) in whole or in part the Right of Pledge as referred to in Article 3:81(2) sub (d) of the CCC. Notice of termination must be given in writing by the Pledgee to the Pledgor and the Company. |
8.2. | The Right of Pledge shall terminate by operation of law upon the payment and satisfaction in full of all Secured Obligations. In that event, the Pledgee shall evidence such termination in accordance with the provisions of the Reimbursement Agreement. |
9.
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Costs
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10.
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Notices
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11.
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Rescission
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12.
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Section 326 of the USA Patriot Act
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13.
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Governing Law and Submission to Jurisdiction
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13.1. | The provisions of this Pledge Agreement and the Right of Pledge created hereby, are governed by, and shall be construed in accordance with, the laws of the Curaçao, without giving regard to conflict of law rules under Curaçao private international law. |
13.2. | The Pledgor and the Pledgee agree that the competent court in Curaçao shall have non-exclusive jurisdiction with regard to any and all disputes which may arise out of or in connection with this Pledge Agreement. |
14.
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Amendment of this Pledge Agreement
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15.
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Severability
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16. | Counterparts |
Central European Media Enterprises Ltd.
as the Pledgor
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/s/ David Sturgeon | ||
Name:
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David Sturgeon
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Title:
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Chief Financial Officer
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Time Warner Inc.
as the Pledgee
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/s/ Edward B. Ruggiero | ||
Name:
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Edward B. Ruggiero
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Title:
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Senior Vice President & Treasurer
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Central European Media Enterprises N.V.
as the Company
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/s/ Daniel Penn | ||
Name:
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Daniel Penn
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Title:
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Managing Director
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a. | Central European Media Enterprises N.V., a public company (naamloze vennootschap) under the laws of Curaçao, having its registered offices in Curaçao, and its office address at Schottegatweg Oost 44, Curaçao, and registered with the Commercial Register of the Curaçao Chamber of Commerce and Industry under number 67248 (the "Pledgor"); |
b. | CME Media Enterprises B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its registered offices in Amsterdam, the Netherlands, and its office address at Dam 5B, 1012 JS Amsterdam, the Netherlands, and registered with the trade register of the Chambers of Commerce under file number 33246826 (the "Company"); |
2. | Jacob Poppe Anne Heiko Jan Lameijer, residing at Sarphatistraat 135c, 1018 GD Amsterdam, the Netherlands, born in Rotterdam, the Netherlands, on the twenty-eight day of February nineteen hundred eighty-five, identified by means of his passport with number NSK4L4DL4, valid until the twenty-seventh day of May two thousand sixteen, in this respect acting as authorized representative of: Time Warner Inc., a corporation incorporated under the laws of the State of Delaware, United States of America, with an address at One Time Warner Center, New York, NY 10019, United States of America (the "Pledgee" as guarantor and as agent under the Reimbursement Agreement and as sole creditor under each Parallel Debt). |
a. | the Pledgor and the Pledgee wish to hereby establish a right of pledge with a sixth priority (on the date hereof) in respect to the Shares (as defined hereafter) under the following terms; |
b. | the holders of the Existing Rights of Pledge (as defined hereafter) have approved the creation of the Right of Pledge (as defined hereafter), as appears from the Amended Intercreditor Agreement (as defined hereafter). |
a. | the "Amended Intercreditor Agreement": the intercreditor agreement dated the twenty-first day of July two thousand and six (and amended and restated on the sixteenth day of May two thousand and seven, on the twenty-second day of August two thousand and seven, the tenth day of March two thousand and eight, the seventeenth day of September two thousand and nine, the twenty-ninth day of September two thousand nine, the twenty-first day of October two thousand and ten, the eighteenth day of February two thousand and eleven, the eighth day of October two thousand and twelve, the second day of May two thousand and fourteen and as further amended and restated on this fourteenth day of November two thousand and fourteen) by and between (among others) Central European Media Enterprises Ltd., the Pledgor, the Company, Citibank, N.A., London Branch (in its capacity as trustee under the 2010 Indenture), BNP Paribas Trust Corporation UK Limited (in its capacity as security agent under the 2010 Indenture), Deutsche Bank Trust Company Americas (in its capacity as trustee and security agent under the 2011 Indenture), Deutsche Bank Trust Company Americas (in its capacity as trustee and security agent under the 2014 Indenture) and the Pledgee (in its capacity as (i) security agent under the 2014 Term Loan and the 2014 RCF (as defined therein) and (ii) guarantor and agent under the Reimbursement Agreement); |
b. | an "Event of Default": each "Event of Default" as defined in the Reimbursement Agreement; |
c. | an "Event of Statutory Default": each Event of Default which also constitutes a default (verzuim) in the fulfilment of the Secured Obligations within the meaning of Section 3:248 of the Dutch Civil Code; |
e. | "Future Shares": any and all future shares in the capital of the Company to be acquired (either through issue, purchase, distribution or otherwise) by the Pledgor after the date of this deed; |
f. | the "Guarantee": the guarantee dated this fourteenth day of November two thousand and fourteen by and between the Pledgor and the Company as subsidiary guarantors and the Pledgee as guarantor and agent under the Reimbursement Agreement. |
g. | a “Parallel Debt”: a Parallel Debt (as defined in Section 26 of the Guarantee). |
h. | the "Present Shares": one hundred ninety-nine thousand nine hundred and ninety-nine (199,999) ordinary shares in the capital of the Company owned by the Pledgor, numbered 1 through 199,997, and 199,999 and 200,000, each share having a nominal value of one Netherlands Guilder (NLG 1) or (converted into euro in accordance with section 2:178c of the Dutch Civil Code) forty-five eurocent (EUR 0.45); |
i. | the "Reimbursement Agreement": the reimbursement agreement dated this fourteenth day of November two thousand and fourteen by and between Central European Media Enterprises Ltd., as borrower and the Pledgee as CME Credit Guarantor and agent. |
j. | the "Right of Pledge": the right of pledge with a sixth priority (on the date hereof) in respect of the Shares established by the execution of this deed; |
k. | the "Secured Obligations": all present and future obligations and liabilities consisting of monetary payment obligations (verbintenissen tot betaling van een geldsom) of the Pledgor to the Pledgee, whether actual or contingent, whether owed jointly, severally or in any other capacity whatsoever, under or in connection with its Parallel Debt, provided that no obligation or liability shall be included in the definition of “Secured Obligations” to the extent that, if it were so included, the Right of Pledge (or any part thereof) or any provision of this deed would be unlawful or prohibited by any applicable law; |
l. | the "Shares": collectively, the Present Shares and the Future Shares; |
m. | "Voting Event": the occurrence of an Event of Statutory Default of which the Pledgee has given notice to the Pledgor and the Company; |
n. | the "2010 Indenture": the indenture dated the twenty-first day of October two thousand and ten by and between (among others) CET 21 spol s r.o. as issuer, and Citibank, N.A., London Branch as trustee; |
o. | the “2011 Indenture”: the indenture dated the eighteenth day of February two thousand and eleven by and between (among others) Central European Media Enterprises Ltd. as issuer, the Pledgor and the Company as guarantors, and Deutsche Bank Trust Company Americas as trustee, security agent, paying agent, conversion agent, transfer agent and registrar; |
p. | the “2014 Term Loan”: the term loan credit agreement dated twenty eighth day of February two thousand and fourteen, as amended and restated on fourteenth day of November two thousand and fourteen, by and between Central European Media Enterprises Ltd. as borrower, the lenders party thereto from time to time and Time Warner Inc. as security agent and administrative agent ; |
q. | the “2014 RCF”: the revolving loan credit facility agreement dated second day of May two thousand and fourteen, as amended and restated on fourteenth day of November two thousand and fourteen, by and between Central European Media Enterprises Ltd. as borrower, the lenders party thereto from time to time and Time Warner Inc. as security agent and administrative agent; and |
r. | the “2014 Indenture”: the indenture dated second day of May two thousand and fourteen by and between (among others) Central European Media Enterprises Ltd. as issuer, the Pledgor and the Company as guarantors and Deutsche Bank Trust Company Americas, as trustee, paying agent, transfer agent and registrar. |
1. | To secure the performance of the Secured Obligations, the Pledgor and the Pledgee hereby agree that the Pledgor will establish the Right of Pledge in favor of the Pledgee, which the Pledgee hereby accepts. |
2. | If and to the extent at any time it shall appear that any right of pledge created hereby or pursuant hereto shall not have the ranking as referred to in the definition of Right of Pledge, the Pledgor and the Pledgee confirm, and – to the extent necessary – hereby further agree, that a valid right of pledge has or shall nevertheless have been created which shall have the highest possible ranking as permitted under Dutch law. |
1. | To secure the performance of the Secured Obligations, the Pledgor hereby establishes the Right of Pledge in favor of the Pledgee, which the Pledgee hereby accepts. The Right of Pledge is one and indivisible (één en ondeelbaar). The Right of Pledge shall not be affected by one or more but not all of the Secured Obligations being discharged or the Secured Obligations being amended. The Right of Pledge includes a right of pledge over all accessory rights (afhankelijke rechten) and all ancillary rights (nevenrechten) attached to the Shares. |
2. | The right of pledge on the Future Shares shall be effected ipso facto at the time the Pledgor becomes authorised to dispose (beschikkingsbevoegd) of such Future Shares and to the extent any further action shall be required to effectuate such right of pledge on Future Shares the Pledgor agrees to take such action and herewith grants an irrevocable power of attorney to the Pledgee to take such action on behalf of the Pledgor. |
1. | The voting and other consensual rights and similar rights or powers attaching to the Shares or any part thereof (the "Voting Rights") are hereby transferred by the Pledgor to the Pledgee under the conditions precedent (opschortende voorwaarden) of (i) the occurrence of a Voting Event and (ii) the termination and/or release of the Existing Rights of Pledge. This conditional transfer of Voting Rights was approved by the shareholders meeting of the Company in a written resolution adopted outside of a general meeting on this fourteenth day of November two thousand and fourteen. Until the occurrence of a Voting Event and subject to the termination and/or release of the Existing Rights of Pledge, the Pledgor may exercise any and all such Voting Rights, save: |
(a) | that no such exercise may violate or be inconsistent with the express terms or purpose of this deed, the Existing Rights of Pledge, the Reimbursement Agreement and/or the Guarantee; |
(b) | that no such exercise may have the effect of impairing the position or interests of the Pledgee hereunder; and |
(c) | as set out in Article 4.2 below. |
2. | Upon the occurrence of a Voting Event and subject to the termination or release of the Existing Rights of Pledge: |
(a) | any and all rights of the Pledgor to exercise the Voting Rights which it is entitled to exercise pursuant to Article 4.1 above shall cease automatically without further notice to the Pledgor being required and the Pledgee shall have the sole and exclusive right, but not the obligation, and authority to exercise such Voting Rights and shall be entitled to exercise or refrain from exercising such rights in such manner as the Pledgee may in its absolute discretion deem fit; and |
(b) | the Pledgee shall immediately be entitled, but not obliged, at any time at its sole discretion, to effect the resignation of and/or to dismiss the directors of the Company or any of them, and to appoint new directors of the Company and the Pledgor hereby undertakes to do all things and execute all documents and instruments as may be required by the Pledgee to ensure the effectiveness of any such resignations, dismissals or appointments. |
3. | By signing this deed, the Company confirms (and the other parties agree) that a written notice from the Pledgee to the Company stating that a Voting Event has occurred, shall be sufficient for the Company to accept the Pledgee as being exclusively entitled to such rights and other powers which it is entitled to exercise pursuant to this Article 4 upon the occurrence of such a Voting Event and subject to the termination and/or release of the Existing Rights of Pledge. |
4. | The Pledgor and the Company agree to notify the Pledgee immediately in writing of any event or circumstance which could be of material importance to the Pledgee with a view to the preservation and exercise of the Pledgee’s rights under or pursuant to this deed, such as (without limitation) the filing of a petition for the bankruptcy (faillissement) of the Pledgor, the filing of a petition for a moratorium of payments (surseance van betaling) by the Pledgor, attachment or garnishment of the Pledgor’s assets, the termination of any one of the Pledgor’s commercial activities or its dissolution. |
5. | Upon the occurrence of a Voting Event and subject to the termination and/or release of the Existing Rights of Pledge, the Pledgee shall have the rights which the law attributes to holders of depositary receipts with meeting rights (vergaderrechten) of shares in its capital. |
6. | During the term of the Right of Pledge, the foregoing provisions of this Article 4 with respect to the Voting Rights on the Present Shares also apply to the Future Shares. In addition, the Pledgor and the Pledgee shall, if reasonably practicable, at the time of or, if not practicable at such time, as soon as reasonably practicable after the acquisition of such Future Shares, arrange that the attribution of the Voting Rights attaching thereto shall be ratified if that is reasonably deemed necessary, to enable the Pledgee to exercise such voting rights upon the occurrence of the conditions precedent as provided in Article 4.1 of this deed. If such ratification is, at the Pledgee's sole discretion, not obtained in time, the Pledgor shall fully co-operate in the taking of such other reasonable measures relating to such transfer of voting rights as are proposed by the Pledgee. |
1. | The authority to collect dividends, distributions from reserves, repayments of capital and all other distributions and payments in any form, which, at any time, during the term of the Right of Pledge, become payable in respect of any one or more of the Shares, shall accrue to the Pledgee, as provided for in paragraph 1 of Section 3:246 of the Dutch Civil Code, subject to the termination and/or release of the Existing Rights of Pledge. |
2. | In derogation of the provisions of Article 5.1 above, the Pledgee hereby grants approval to the Pledgor to collect all dividends, distributions from reserves, repayments of capital and all other distributions and payments in any form, which, at any time, during the term of the Right of Pledge, become payable on any one or more of the Shares, subject to the termination and/or release of the Existing Rights of Pledge. |
3. | The Pledgee may terminate the authorization mentioned in Article 5.2 above upon occurrence of an Event of Default only. Termination of the authorization is made by written statement to that effect, by the Pledgee to the Pledgor, copied to the Company. |
a. | on first demand in writing from the Pledgee, the Pledgor shall take all actions, and draw up and sign all supplementary documents as the Pledgee may consider necessary or desirable for the performance of the Pledgor's obligations under this deed, and to fully cooperate so as to enable the Pledgee to exercise his rights, with due regard to the relevant provisions of the Existing Rights of Pledge; |
b. | the Pledgor shall, on first demand from the Pledgee, submit to the Pledgee all requested material information and data with respect to the Shares; |
c. | during the term of the Right of Pledge, the Pledgor shall not alienate, pledge or in any other way encumber the Shares, (depositary receipts for) shares and/or rights to acquire (depository receipts for) shares in the capital of the Company without the prior written consent of the Pledgee except for an encumbrance permitted in accordance with the provisions of the Reimbursement Agreement, the Amended Intercreditor Agreement or the Guarantee; |
d. | the Pledgor shall with due regard to the relevant provisions of the Existing Rights of Pledge provide that the (depositary receipts for) Future Shares and/or rights to acquire (depositary receipts for) Future Shares in the capital of the Company it acquires after execution of this deed shall be pledgeable, and that the transferability thereof shall not be more cumbersome than the transferability of the Shares; |
e. | whenever the Pledgor is aware that the Company is involved in the preparation of a legal merger or demerger as a result of which the Company would cease to exist, the Pledgor shall inform the Pledgee thereof in writing immediately; and |
f. | whenever the Pledgor is aware that actions have been taken for the winding-up, dissolution, administration, bankruptcy, suspension of payments or reorganization of the Company, or that an Event of Statutory Default has occurred, the Pledgor shall inform the Pledgee thereof in writing immediately. |
1. | The Pledgor warrants to the Pledgee that, at this time, the following is correct: |
a. | the Company is a private company with limited liability, legally established under the laws of the Netherlands by notarial deed, executed before H. van Wilsum, at that time civil law notary officiating in Amsterdam, the Netherlands, on the third day of August nineteen hundred and ninety-four. The articles of association of the Company were last partially amended by deed executed before a substitute of M.P. Bongard, civil law notary officiating in Amsterdam, the Netherlands, on the thirty-first day of May nineteen hundred and ninety-eight. A copy of the present articles of association shall be attached to this deed (Annex II). The Company is currently registered with the trade register of the Chamber of Commerce for Amsterdam, the Netherlands, under file number 33246826. A copy of the extract from the trade register shall be attached to this deed (Annex III); |
b. | the Company has not been dissolved, and no resolution has been adopted to dissolve the Company, nor has any request therefor been filed, nor has any notice by the Chambers of Commerce, as described in Section 2:19a of the Dutch Civil Code, been received. The Company has not been declared bankrupt nor has a suspension of payment been granted, nor have any requests thereto been filed nor are any such petitions anticipated; |
c. | the shareholders' register of the Company is completely accurate and up to date. A copy of the shareholders' register is attached to this deed (Annex IV); |
d. | the entire issued share capital of the Company consists of two hundred thousand (200,000) ordinary shares, numbered 1 through 200,000; one (1) share with the number 199,998 is held by the Company in its own capital and all of the issued shares are fully paid-up; the Company has not granted any rights to subscribe for shares in its capital which have not yet been exercised; |
e. | the Pledgor has a complete and unencumbered right to the Present Shares, with the exception of the Existing Rights of Pledge, and any attachments made after the date of this deed, and its rights to the Shares are not subjected to revocation (herroeping), rescission (ontbinding) or any form of annulment (vernietiging) whatsoever; |
f. | the Pledgor has not been deprived of the authority to alienate the Shares by virtue of Section 2:22a subsection 1 of the Dutch Civil Code; |
g. | the Shares are not subject to either (limited) rights or obligations to transfer to third parties or claims based on contracts of any nature and have not been encumbered with any attachment, except for the Existing Rights of Pledge; |
h. | the Pledgor is authorized to establish the Right of Pledge and is entitled to transfer the voting rights pertaining to the Shares to the Pledgee, subject to the Existing Rights of Pledge and in accordance with Article 4.1 above; |
i. | all resolutions and approvals, required for establishing the Right of Pledge with the transfer to the Pledgee of the voting rights pertaining to the Shares pursuant to Article 4.1 above, have been adopted and/or obtained respectively; |
j. | the obligations of the Pledgor and the Company vis-à-vis the Pledgee, resulting from the Reimbursement Agreement, the Guarantee and this deed (as the case may be), are lawful obligations of the Pledgor and the Company, respectively, and are legally enforceable against the Pledgor and the Company, respectively subject to the Amended Intercreditor Agreement; |
k. | the assumption and performance by the Pledgor and the Company respectively of the obligations vis-à-vis the Pledgee resulting from the Reimbursement Agreement, the Guarantee, the Amended Intercreditor Agreement and this deed are not contrary to any provision of applicable law or any agreement to which the Pledgor or the Company is a party, or by which the Pledgor or the Company is bound in any other way; and |
l. | the Pledgor has provided the Pledgee with all information and data with respect to the Shares which the Pledgor reasonably believes to be of importance to the Pledgee. |
2. | Furthermore, the Pledgor hereby declares to have acquired the Present Shares as follows: |
- | as for the numbers 1 through 199,997 pursuant to a notarial deed of transfer of shares, executed before H. van Wilsum, mentioned above, on the nineteenth day of September nineteen hundred and ninety-four; and |
- | as for the numbers 199,999 and 200,000 pursuant to a notarial deed of issuance of shares, issued before R.W. Clumpkens, civil law notary officiating in Amsterdam, the Netherlands, on the sixteenth day of December nineteen hundred and ninety-six. |
1. | Upon the occurrence of an Event of Statutory Default, the Pledgee has (without any further notice (ingebrekestelling) being required), with due regard to the relevant provisions of the Existing Rights of Pledge, and the Amended Intercreditor Agreement, the right to exercise all rights and powers which the Pledgee has under Dutch law as holder of a right of pledge over the Shares, and the Pledgee shall be authorized to sell the Shares or part thereof, in accordance with Section 3:248 of the Dutch Civil Code, without prejudice to the provision of Section 3:251 of the Dutch Civil Code, in order to recover the proceeds thereof. |
2. | The blocking clause contained in the articles of association of the Company shall apply to the transfer of the Shares by the Pledgee, it being understood that the Pledgee shall, with due regard to the relevant provisions of the Existing Rights of Pledge, exercise all of the Pledgor's rights relevant to the alienation and transfer of the Shares, and that the Pledgee shall fulfill the Pledgor's obligations relevant thereto. |
3. | The Pledgee shall be entitled, following a sale pursuant to this Article 8, to have the Present Shares and the Future Shares registered in the name of the new shareholder and - to the extent necessary, on behalf of the Pledgor - to perform any action and execute any agreement required by law or by the articles of association of the Company to that effect. |
4. | The terms and conditions and location of the public sale pursuant to this Article 8 shall be determined by the Pledgee, taking into consideration local practice and customary terms and conditions. |
5. | In the event the Pledgee enforces execution of the Right of Pledge, the Pledgee shall, with due regard to the relevant provisions of the Existing Rights of Pledge, following payment of the enforcement costs from the proceeds, allocate the net proceeds to fulfill the Secured Obligations. |
6. | The Pledgee does not bear the obligations referred to in Sections 3:249 and 3:252 of the Dutch Civil Code towards others than the Pledgor. |
1. | The Right of Pledge shall terminate if and when (a) any and all Secured Obligations have been irrevocably and unconditionally fulfilled, or (b) any and all Secured Obligations have been otherwise terminated or cancelled. |
2. | The Pledgee shall be entitled to terminate the Right of Pledge in whole or in part at any time. Termination shall be effectuated by a written notification to that effect by the Pledgee to the Pledgor with copy to the Company. |
1. | Any notices or other communication under or in connection with this deed shall be in writing in the English language and shall be delivered personally or by registered mail or fax. Proof of posting shall be deemed to be proof of receipt: |
(i) | in the case of hand delivery: on the day the notice is received by recipient; |
(ii) | in the case of a registered letter: on the third business day after posting; or |
(iii) | in the case of a fax transmission: upon receipt of fax confirmation. |
2. | As to the existence and composition of the Secured Obligations, a written statement by the Pledgee made in accordance with its books shall constitute full proof, subject to proof to the contrary, it being understood that in the event of a disagreement with respect thereto, the Pledgee shall be authorized to exercise his right of execution, with due observance of the obligation of the Pledgee to pay over all amounts which afterwards would appear to be received by him in excess of his rights and with due regard to the relevant provisions of the Existing Rights of Pledge. |
3. | The Right of Pledge, including all provisions of this deed, shall be governed by the laws of the Netherlands. |
4. | The competent court of law in Amsterdam, the Netherlands, shall have non-exclusive jurisdiction with regard to all disputes relating to the Right of Pledge and/or this deed. |
5. | If a provision of this deed is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability of any other provision of this deed in that jurisdiction and the legality, validity or enforceability in other jurisdictions of that or any other provision of this deed. |
6. | All costs, fees, taxes and other amounts (including notarial fees, taxes, legal fees, registration fees, translation costs and stamp duties) incurred by the Pledgee in connection with the negotiation, creation or execution of any documentation in connection with the Right of Pledge and the enforcement of the Right of Pledge will be for the account of the Pledgor. |
7. | The Pledgor, the Company and the Pledgee hereby waive, to the fullest extent permitted by law, their right to rescind (ontbinden) this deed pursuant to failure in the performance of one or more of their obligations as referred to in Section 6:265 of the Dutch Civil Code or on any other ground, to suspend (opschorten) any of its obligations under this deed pursuant to section 6:52, 6:262 or 6:263 of the Dutch Civil Code or on any other ground, and to nullify (vernietigen) this deed pursuant to section 6:228 of the Dutch Civil Code or on any other ground. |
8. | The Pledgee shall not be obligated to give notice of a sale to someone other than to the Pledgor as referred to in the Sections 3:249 and 3:252 of the Dutch Civil Code. |
9. | Neither the Pledgee, nor any of its respective officers, employees or agents will be in any way liable or responsible to the Pledgor or the Company or any other party for any loss or liability of any kind arising from any act or omission by it of any kind (whether as mortgagee in possession or otherwise) in relation to the Right of Pledge or this deed, except to the extent caused by its own negligence or wilful misconduct. The Pledgor shall indemnify the Pledgee in respect of all losses, claims or liabilities (including reasonable expenses) incurred by the Pledgee in connection with its acceptance of the Right of Pledge and the exercise by the Pledgee of any rights or powers vested in it hereunder, other than losses, claims or liabilities resulting from the wilful misconduct or negligence of the Pledgee. |
10. | The Pledgor is not entitled to file a request with the voorzieningenrechter of the district court to sell the Shares in a manner which deviates from the sale in public as referred to in Section 3:251 paragraph 1 of the Dutch Civil Code. |
11. | The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Pledgee, as a financial institution, is required, in order to help fight the funding of terrorism and money laundering, to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this deed agree that they will provide the Pledgee with such information as it may request in order to satisfy the requirements of the USA Patriot Act. |
a. | that it acknowledges the aforementioned Right of Pledge; |
b. | that it has been informed of the provisions under which the Right of Pledge is established, and fully cooperates with the implementation thereof; |
c. | that no facts or circumstances are known to the Company, which in any way are inconsistent with the warranties and declarations of the Pledgor stated in this deed; |
d. | it shall register in the Company's shareholders' register that the Shares are encumbered with a right of pledge in favor of the Pledgee, that, subject to the provisions of Article 4, the Pledgee has the Voting Rights and to whom, the Pledgor or the Pledgee, the rights accrue which the law attributes to holders of depositary receipts with meeting rights (vergaderrechten) of shares in the capital of a company; |
e. | that all resolutions and approvals required from the Company for establishing a right of pledge with a sixth priority (on the date hereof) on the Shares by the Pledgor in favor of the Pledgee under the provisions contained in this deed, have been adopted and received respectively; |
f. | that it is a private company with limited liability, duly incorporated and validly existing under the laws of the Netherlands and is registered in the trade register of the Chamber of Commerce for Amsterdam, the Netherlands, under number 33246826 and that the information contained in the trade register is correct and complete; |
g. | that the Company has not been dissolved, nor has a resolution to dissolve the Company been approved nor has a petition been filed to dissolve the Company, nor has a notice from the Chamber of Commerce pursuant to Section 2:19a paragraph 3 of the Dutch Civil Code been received; and |
h. | that the Company has not been declared bankrupt, nor has a suspension of payments, including any other types of regulations with similar legal consequences been granted, nor have any petitions thereto been filed nor are any such petitions expected. |
Clause
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Page
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
RESTATEMENT OF THE ORIGINAL AGREEMENT
|
2
|
3.
|
FURTHER ASSURANCE
|
2
|
4.
|
MISCELLANEOUS
|
2
|
5.
|
GOVERNING LAW
|
3
|
SCHEDULE 1 RESTATED AGREEMENT
|
SCHEDULE 1
|
(A)
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD., a company established under the laws of Bermuda (the “Company”);
|
(B)
|
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V. a company established under the laws of Curaçao (“CME N.V.”);
|
(C)
|
CME MEDIA ENTERPRISES B.V. a company established under the laws of the Netherlands (“CME B.V.”);
|
(D)
|
CITIBANK, N.A., LONDON BRANCH, (acting in its capacity as Trustee under the 2010 Indenture) (the “2010 Notes Trustee”);
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(E)
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BNP PARIBAS TRUST CORPORATION UK LIMITED (acting in its capacity as Security Trustee in respect of the 2010 Indenture) (the “2010 Security Trustee”);
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(F)
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DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (acting in its capacity as Trustee and Security Agent under the 2011 Indenture) (the “2011 Trustee”);
|
(G)
|
TIME WARNER INC. (acting in its capacity as Security Agent under the 2014 Term Loan) (the “2014 Term Loan Agent”);
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(H)
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TIME WARNER INC. (acting in its capacity as Security Agent under the 2014 RCF) (the “2014 RCF Agent”);
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(I)
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (acting in its capacity as Trustee and Security Agent under the 2014 Indenture) (the “2014 Trustee”); and
|
(J)
|
TIME WARNER INC. (acting in its capacity as CME Credit Guarantor and Agent under the 2014 Reimbursement Agreement) (the “2014 Guarantor”).
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1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.2
|
Incorporation of defined terms
|
(a)
|
Unless a contrary indication appears, a term defined in the form of Restated Agreement attached as Schedule 1 to this Deed has the same meaning in this Deed.
|
(b)
|
The principles of construction set out in the form of Restated Agreement attached as Schedule 1 to this Deed shall have effect as if set out in this Deed.
|
1.3
|
Clauses
|
2.
|
RESTATEMENT OF THE ORIGINAL AGREEMENT
|
3.
|
FURTHER ASSURANCE
|
4.
|
MISCELLANEOUS
|
4.1
|
Incorporation of terms
|
4.2
|
Counterparts
|
5.
|
GOVERNING LAW
|
By:
|
/s/ David Sturgeon |
Name:
|
David Sturgeon |
Title:
|
Chief Financial Officer |
Address:
|
O’Hara House, 3 Bermudiana Road, Hamilton, Bermuda
|
Facsimile:
|
+1 441 295 0992
|
Attention:
|
Assistant Secretary
|
Address:
|
CME Media Services Limited
|
Krizeneckeho nam. 1078/5a
|
|
Prague 5, 152 00, Czech Republic
|
|
Facsimile:
|
+420 242 464 483
|
Attention:
|
Legal Department
|
By:
|
/s/ Daniel Penn |
Name:
|
Daniel Penn |
Title:
|
Managing Director |
Address:
|
Schottegatweg Oost 44, Willemstad, Curaçao
|
Facsimile:
|
+ 599 9 732 2500
|
Attention:
|
Managing Director
|
Address:
|
CME Media Services Limited
|
Krizeneckeho nam. 1078/5a
|
|
Prague 5, 152 00, Czech Republic
|
|
Facsimile:
|
+420 242 464 483
|
Attention:
|
Legal Department
|
By:
|
/s/ David Sturgeon |
Name:
|
David Sturgeon |
Title:
|
Managing Director |
Address:
|
Dam 5B, 1012 JS Amsterdam, The Netherlands
|
Facsimile:
|
+312 042 31404
|
Attention:
|
Managing Director
|
Address:
|
CME Media Services Limited
|
Krizeneckeho nam. 1078/5a
|
|
Prague 5, 152 00, Czech Republic
|
|
Facsimile:
|
+420 242 464 483
|
Attention:
|
Legal Department
|
By:
|
/s/ Andrew McIntosh |
Name:
|
Andrew McIntosh |
Title:
|
Vice President |
Address:
|
13th Floor
|
Citigroup Centre
|
|
Canada Square, Canary Wharf | |
London E14 5LB
|
Facsimile:
|
+44 20 7500 5877
|
Attention:
|
Agency & Trust
|
By:
|
/s/ Helen Tricard | /s/ Andrew Brown |
Name:
|
Helen Tricard | Andrew Brown |
Title:
|
Director | Authorised Signatory |
in the presence of: | /s/ Maria Dawson | Maria Dawson |
Address:
|
55 Moorgate, London, EC2R 6PA
|
Fax:
|
+44 20 7595 5078
|
Attention:
|
The Directors
|
By: | Deutsche Bank National Trust Company |
/s/ Chris Niesz | |
Name:
|
Chris Niesz |
Title:
|
Assistant Vice President |
/s/ Debra A. Schwalb | |
Name:
|
Debra A. Schwalb |
Title:
|
Vice President |
in the presence of: | /s/ Rolan Izar | Rolan Izar |
Address:
|
Deutsche Bank Trust Company Americas
|
Trust & Agency Services
|
|
60 Wall Street, 16th Floor MS NYC60-1630
|
|
New York, New York 10005
|
|
U.S.A. |
Facsimile:
|
+ 1 732 578 4635
|
Attention:
|
Corporates Team Deal Manager – Central European Media Enterprises Ltd.
|
Address:
|
Deutsche Bank Trust Company Americas
|
c/o Deutsche Bank National Trust Company
|
|
Trust & Securities Services
|
|
100 Plaza One, 6th Floor Mailstop JCY03-0699
|
|
Jersey City, New Jersey 07311
|
|
U.S.A.
|
Facsimile:
|
+ 1 732 578 4635
|
Attention:
|
Corporates Team Deal Manager – Central European Media Enterprises Ltd.
|
By: | /s/ Edward B. Ruggiero |
Name:
|
Edward B. Ruggiero |
Title:
|
Senior Vice President & Treasurer |
By: | /s/ Stephen N. Kapner |
Name:
|
Stephen N. Kapner |
Title:
|
Vice President & Assistant Treasurer |
in the presence of: | /s/ Lisa Reinhardt | Lisa Reinhardt |
Address:
|
One Time Warner Center
|
New York, New York 10019
|
Facsimile:
|
(212) 484-7151
|
Attention:
|
Treasurer
|
By: | /s/ Edward B. Ruggiero |
Name:
|
Edward B. Ruggiero |
Title:
|
Senior Vice President & Treasurer |
By: | /s/ Stephen N. Kapner |
Name:
|
Stephen N. Kapner |
Title:
|
Vice President & Assistant Treasurer |
in the presence of: | /s/ Lisa Reinhardt | Lisa Reinhardt |
Address:
|
One Time Warner Center
|
New York, New York 10019
|
Facsimile:
|
(212) 484-7151
|
Attention:
|
Treasurer
|
By: | Deutsche Bank National Trust Company |
/s/ Chris Niesz | |
Name:
|
Chris Niesz |
Title:
|
Assistant Vice President |
/s/ Debra A. Schwalb | |
Name:
|
Debra A. Schwalb |
Title:
|
Vice President |
in the presence of: | /s/ Rolan Izar | Rolan Izar |
Address:
|
Deutsche Bank Trust Company Americas
|
Trust & Agency Services
|
|
60 Wall Street, 16th Floor MS NYC60-1630
|
|
New York, New York 10005
|
|
U.S.A. |
Facsimile:
|
+ 1 732 578 4635
|
Attention:
|
Corporates Team Deal Manager – Central European Media Enterprises Ltd.
|
Address:
|
Deutsche Bank Trust Company Americas
|
c/o Deutsche Bank National Trust Company
|
|
Trust & Securities Services
|
|
100 Plaza One, 6th Floor Mailstop JCY03-0699
|
|
Jersey City, New Jersey 07311
|
|
U.S.A.
|
Facsimile:
|
+ 1 732 578 4635
|
Attention:
|
Corporates Team Deal Manager – Central European Media Enterprises Ltd.
|
By: | /s/ Edward B. Ruggiero |
Name:
|
Edward B. Ruggiero |
Title:
|
Senior Vice President & Treasurer |
By: | /s/ Stephen N. Kapner |
Name:
|
Stephen N. Kapner |
Title:
|
Vice President & Assistant Treasurer |
in the presence of: | /s/ Lisa Reinhardt | Lisa Reinhardt |
Address:
|
One Time Warner Center
|
New York, New York 10019
|
Facsimile:
|
(212) 484-7151
|
Attention:
|
Treasurer
|
ARTICLE 1 - DEFINITIONS
|
1
|
|
Section 1.01.
|
Definitions
|
2
|
Section 1.02.
|
Interpretation
|
7
|
Section 1.03.
|
Effect as a Deed
|
8
|
ARTICLE 2 - CONSENT AND ACKNOWLEDGEMENT
|
8
|
|
Section 2.01.
|
Consent and Acknowledgement
|
8
|
ARTICLE 3 - SHARING AND ENFORCEMENT
|
9
|
|
Section 3.01.
|
Application of Distribution Moneys
|
9
|
Section 3.02.
|
Notional Conversion of Amounts
|
10
|
Section 3.03.
|
Trust
|
11
|
Section 3.04.
|
Enforcement of Security
|
11
|
ARTICLE 4 - MISCELLANEOUS
|
14
|
|
Section 4.01.
|
Term of Agreement
|
14
|
Section 4.02.
|
Entire Agreement; Amendment and Waiver
|
15
|
Section 4.03.
|
Notices
|
15
|
Section 4.04.
|
Governing Law and Arbitration
|
15
|
Section 4.05.
|
Successors and Assigns; Third Party Rights
|
15
|
Section 4.06.
|
Counterparts
|
16
|
means the outstanding debt securities issued under the 2010 Indenture.
|
||
“2010 Notes Creditor”
|
means each holder of the 2010 Notes and/or the 2010 Note Trustee (on its own behalf and as applicable on behalf of the holders of the 2010 Notes).
|
“2010 Notes Debt”
|
means all Liabilities of CET 21 to any 2010 Notes Creditor under or in connection with the 2010 Notes Finance Documents.
|
|
“2010 Notes Discharge Date”
|
means the date on which the 2010 Notes Trustee is satisfied that all of the 2010 Notes Debt has been irrevocably and unconditionally discharged pursuant to Section 8.5 of the 2010 Indenture.
|
|
“2010 Notes Finance Documents”
|
means the 2010 Indenture and the 2010 Security Documents.
|
|
“2010 Notes Trustee”
|
means Citibank, N.A., London Branch as Trustee under the 2010 Indenture.
|
|
“2010 Security”
|
means the security created pursuant to the 2010 Security Documents.
|
|
“2010 Security Documents”
|
means the (a) the pledge of shares in CME N.V. granted on 21 October 2010 by the Company in favour of the 2010 Security Trustee; and (b) the pledge of shares in CME B.V. granted on 21 October 2010 by CME N.V. in favour of the 2010 Security Trustee.
|
|
“2010 Security Trustee”
|
means BNP Paribas Trust Corporation UK Limited as Security Trustee in respect of the 2010 Indenture.
|
|
“2011 Notes”
|
means the outstanding debt securities issued under the 2011 Indenture.
|
|
“2011 Notes Creditor”
|
means each holder of the 2011 Notes and/or the 2011 Trustee (acting as trustee and security agent for its own behalf and as applicable on behalf of the holders of the 2011 Notes).
|
|
“2011 Notes Debt”
|
means all Liabilities of any Obligor to any 2011 Notes Creditor under or in connection with the 2011 Notes Finance Documents.
|
|
“2011 Notes Discharge Date”
|
means the date on which the 2011 Trustee, as trustee, is satisfied that all of the 2011 Notes Debt has been irrevocably and unconditionally paid and discharged and all rights of the Company to create and issue further 2011 Notes under the 2011 Indenture have been cancelled.
|
|
“2011 Notes Finance Documents”
|
means the 2011 Indenture and the 2011 Notes Security Documents.
|
“2011 Notes Security”
|
means the “Collateral” as such term is defined in Section 12.01 of the 2011 Indenture.
|
|
“2011 Notes Security Documents”
|
means the “Share Pledges” as such term is defined in Section 12.01 of the 2011 Indenture, and includes (a) the pledge of shares in CME N.V. granted on 18 February 2011 by the Company in favour of the 2011 Trustee; and (b) the pledge of shares in CME B.V. granted on 18 February 2011 by CME N.V. in favour of the 2011 Trustee.
|
|
“2011 Trustee”
|
means Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee under the 2011 Indenture and where relevant as Security Agent under the 2011 Indenture.
|
|
“2014 RCF Creditor”
|
means each Lender, as defined in the 2014 RCF.
|
|
“2014 RCF Debt”
|
means all Liability of any Obligor to any 2014 RCF Creditor under or in connection with the 2014 RCF Finance Documents.
|
|
“2014 RCF Discharge Date”
|
means the date on which the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF) is satisfied that all of the 2014 RCF Debt has been irrevocably and unconditionally paid and discharged and all rights of the Company to borrow further amounts under the 2014 RCF have been cancelled.
|
|
“2014 RCF Finance Documents”
|
means the 2014 RCF and the 2014 RCF Security Documents.
|
|
“2014 RCF Security”
|
means the security created pursuant to the 2014 RCF Security Documents.
|
|
“2014 RCF Security Documents”
|
means (a) the pledge of shares in CME N.V. granted on 2 May 2014 by the Company in favour of the 2014 RCF Agent; and (b) the pledge of shares in CME B.V. granted on 2 May 2014 by CME N.V. in favour of the 2014 RCF Agent.
|
|
“2014 Term Loan Creditor”
|
means each Lender, as defined in the 2014 Term Loan.
|
|
“2014 Term Loan Debt”
|
means all Liability of any Obligor to the 2014 Term Loan Creditor under or in connection with the 2014 Term Loan Finance Documents.
|
“2014 Term Loan Discharge Date”
|
means the date on which the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan) is satisfied that all of the 2014 Term Loan Debt has been irrevocably and unconditionally paid and discharged and all rights of the Company to borrow further amounts under the 2014 Term Loan have been cancelled.
|
|
“2014 Term Loan Finance Documents”
|
means the 2014 Term Loan and the 2014 Term Loan Security Documents.
|
|
“2014 Term Loan Security”
|
means the security created pursuant to the 2014 Term Loan Security Documents.
|
|
“2014 Term Loan Security Documents”
|
means (a) the pledge of shares in CME N.V. granted on 2 May 2014 by the Company in favour of the 2014 Term Loan Agent; and (b) the pledge of shares in CME B.V. granted on 2 May 2014 by CME N.V. in favour of the 2014 Term Loan Agent.
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|
“2014 Notes”
|
means the outstanding debt securities issued under the 2014 Indenture.
|
|
“2014 Notes Creditor”
|
means each holder of the 2014 Notes and/or the 2014 Trustee (acting as trustee and security agent on its own behalf and as applicable on behalf of the holders of the 2014 Notes).
|
|
“2014 Notes Debt”
|
means all Liabilities of any Obligor to any 2014 Notes Creditor under or in connection with the 2014 Notes Finance Documents.
|
|
“2014 Notes Discharge Date”
|
means the date on which the 2014 Trustee, as trustee, is satisfied that all of the 2014 Notes Debt has been irrevocably and unconditionally paid and discharged and all rights of the Company to create and issue further 2014 Notes under the 2014 Indenture have been cancelled.
|
|
“2014 Notes Finance Documents”
|
means the 2014 Indenture and the 2014 Notes Security Documents.
|
|
“2014 Notes Security”
|
means the “Collateral” as such term is defined in Section 1.1 of the 2014 Indenture.
|
|
“2014 Notes Security Documents”
|
means the “Security Documents” as such term is defined in Section 1.1 of the 2014 Indenture, and includes (a) the pledge of shares in CME N.V. granted on 2 May 2014 by the Company in favour of the 2014 Trustee; and (b) the pledge of shares in CME B.V. granted on 2 May 2014 by CME N.V. in favour of the 2014 Trustee.
|
“2014 Trustee”
|
means Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee under the 2014 Indenture and where relevant as Security Agent under the 2014 Indenture.
|
|
“2014 Reimbursement Debt”
|
means all Liability of any Obligor to the 2014 Guarantor under or in connection with the 2014 Reimbursement Documents.
|
|
“2014 Reimbursement Discharge Date”
|
means the date on which the 2014 Guarantor is satisfied that all of the Liabilities of any of the Obligor have been discharged under the 2014 Reimbursement Agreement.
|
|
“2014 Reimbursement Documents”
|
means the 2014 Reimbursement Agreement and the 2014 Reimbursement Security Documents.
|
|
“2014 Reimbursement Security”
|
means the security created pursuant to the 2014 Reimbursement Security Documents.
|
|
“2014 Reimbursement Security Documents”
|
means (a) the pledge of shares in CME N.V. granted on or about the date hereof by the Company in favour of the 2014 Guarantor; and (b) the pledge of shares in CME B.V. granted on or about the date hereof by CME N.V. in favour of the 2014 Guarantor.
|
|
“Amount Outstanding”
|
means the aggregate of the Liabilities at any time and from time to time owing and unpaid by any of the Obligors in respect of the 2010 Notes Debt, 2011 Notes Debt, the 2014 Term Loan Debt, the 2014 RCF Debt, the 2014 Notes Debt and the 2014 Reimbursement Debt.
|
|
“Distribution Moneys”
|
means any moneys received by any of the Secured Parties or any person acting on behalf, or on the instructions, of any of them from the enforcement of the Security or any part thereof.
|
|
“Enforcement Notice”
|
shall have the meaning ascribed to it in Section 3.04(g).
|
“Finance Document”
|
means each of the 2010 Notes Finance Documents (until the 2010 Notes Discharge Date), the 2011 Notes Finance Documents, the 2014 Term Loan Finance Documents, the 2014 RCF Finance Documents, the 2014 Notes Finance Document, the 2014 Reimbursement Documents and this Agreement.
|
|
“Foreign Exchange Event”
|
means the unavailability of foreign exchange, or any prohibition or restriction imposed as a result of a moratorium or debt rescheduling by the central bank or any other governmental agency or authority within any relevant jurisdiction where the payment of any Amount Outstanding shall be made or where any Distribution Moneys are recovered.
|
|
“Liability”
|
means, in relation to any Finance Document, any present or future liability (actual or contingent) which is or may be payable or owing under or in connection with that Finance Document, whether or not matured or liquidated, including (without limitation) in respect of principal, interest, default interest, commission, charges, fees, expenses, indemnities and other amounts provided for therein.
|
|
“Party”
|
means any Obligor, the 2010 Notes Trustee (until the 2010 Notes Discharge Date), the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee or the 2014 Guarantor as the context requires.
|
|
“Secured Parties”
|
means the 2010 Security Trustee (until the 2010 Notes Discharge Date), 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee and the 2014 Guarantor.
|
|
“Security”
|
means the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security, the 2014 Notes Security and the 2014 Reimbursement Security.
|
|
“Security Documents”
|
means the 2010 Security Documents (until the 2010 Notes Discharge Date), the 2011 Notes Security Documents, the 2014 Term Loan Security Documents, the 2014 RCF Security Documents, the 2014 Notes Security Documents and the 2014 Reimbursement Security Documents.
|
|
“USD” or “$”
|
means the lawful currency of the United States of America.
|
(a) | In this Agreement, unless the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting persons include corporations, partnerships and other legal persons and references to a person include its successors and permitted assigns. |
(b) | In this Agreement, a reference to a specified Article or Section shall be construed as a reference to that specified Article or Section of this Agreement. |
(c) | In this Agreement, a reference to an agreement shall be construed as a reference to such agreement as it may be amended, varied, supplemented, novated or assigned from time to time. |
(d) | In this Agreement, the headings and the Table of Contents are inserted for convenience of reference only and shall not affect the interpretation of this Agreement. |
(a) | Each of the 2010 Security Trustee and the 2010 Notes Trustee hereby acknowledges the creation and existence of 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security, the 2014 Notes Security and the 2014 Reimbursement Security on a pari passu basis with the 2010 Security in right and priority of payment, without any preference between themselves (until the 2010 Notes Discharge Date). |
(b) | The 2011 Trustee hereby acknowledges the creation and existence of the 2010 Security (until the 2010 Notes Discharge Date), the 2014 Term Loan Security, the 2014 RCF Security, the 2014 Notes Security and the 2014 Reimbursement Security on a pari passu basis with the 2011 Notes Security in right and priority of payment, without any preference between themselves. |
(c) | The 2014 Term Loan Agent hereby acknowledges the creation and existence of the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 RCF Security, the 2014 Notes Security and the 2014 Reimbursement Security on a pari passu basis with the 2014 Term Loan Security in right and priority of payment, without any preference between themselves. |
(d) | The 2014 RCF Agent hereby acknowledges the creation and existence of the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 Notes Security and the 2014 Reimbursement Security on a pari passu basis with the 2014 RCF Security in right and priority of payment, without any preference between themselves. |
(e) | The 2014 Trustee hereby acknowledges the creation and existence of the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security and the 2014 Reimbursement Security on a pari passu basis with the 2014 Notes Security in right and priority of payment, without any preference between themselves. |
(f) | The 2014 Guarantor hereby acknowledges the creation and existence of the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security and the 2014 Notes Security on a pari passu basis with the 2014 Reimbursement Security in right and priority of payment, without any preference between themselves. |
(g) | Each of the Parties to this Agreement hereby acknowledges and agrees that as of the 2010 Notes Discharge Date (and without prejudice to the effectiveness of this clause), this Agreement shall be read and construed as if all references to the 2010 Indenture, the 2010 Notes, the 2010 Notes Creditor, the 2010 Notes Debt, the 2010 Notes Discharge Date, the 2010 Notes Finance Documents, the 2010 Notes Trustee, the 2010 Trustee, the 2010 Security, the 2010 Security Documents and the 2010 Security Trustee had been deleted in their entirety. |
(h) | The Obligors, the 2011 Trustee, the 2014 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, and the 2014 Guarantor hereby acknowledge and confirm that as of the 2010 Notes Discharge Date, each of the 2010 Security Trustee and the 2010 Notes Trustee will be released from all of their obligations under this Agreement. |
(i) | The 2010 Notes Trustee and the 2010 Security Trustee each hereby confirm, acknowledge and agree that as of the 2010 Notes Discharge Date they will have no further rights or interests in respect of this Agreement and shall not be deemed to be a Party to this Agreement for the purpose of any amendments to this Agreement after the 2010 Notes Discharge Date. |
(j) | The Obligors hereby agree to the terms of this Agreement and undertake with the Secured Parties to observe the provisions hereof and not to do or omit to do anything which may prejudice or adversely affect the enforcement of such provisions. |
(a) | Unless and until the whole of the Amount Outstanding has been paid in full, all Distribution Moneys shall, as among the 2010 Security Trustee, the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee and the 2014 Guarantor, be applied and divided as follows: |
(1) | first, pro rata in paying all proper costs, charges and expenses incurred by the Secured Parties in the enforcement of the Security or any part thereof or otherwise in collecting Distribution Moneys, which will be pro rata to the Amount Outstanding under the 2010 Notes Debt (until the 2010 Notes Discharge Date), the 2011 Notes Debt, the 2014 Term Loan Debt, the 2014 RCF Debt, the 2014 Notes Debt and the 2014 Reimbursement Debt respectively; |
(2) | next, pro rata in paying to each of the Secured Parties the part of the Amount Outstanding which is due and payable to it in respect of the 2010 Notes Debt (until the 2010 Notes Discharge Date), the 2011 Notes Debt, the 2014 Term Loan Debt, the 2014 RCF Debt, the 2014 Notes Debt and the 2014 Reimbursement Debt, respectively, and, if applicable, in accordance with Section 3.01(b); and |
(3) | last, in paying the surplus (if any) to the person or persons entitled thereto. |
(b) | If the Distribution Moneys are or may be insufficient to pay in full all amounts due under Section 3.01(a)(1) or 3.01(a)(2), as the case may be, then the Distribution Moneys shall be apportioned for payment under Section 3.01(a)(1) or 3.01(a)(2), as the case may be, ratably and without preference or priority between the Secured Parties in the proportions that the part of the Amount Outstanding which is due in respect of, respectively, the 2010 Notes Debt (until the 2010 Notes Discharge Date), the 2011 Notes Debt, the 2014 Term Loan Debt, the 2014 RCF Debt, the 2014 Notes Debt and the 2014 Reimbursement Debt at the date of such payment bears to the whole of the Amount Outstanding at such date. Pending such payment, such Distribution Moneys shall be held in a segregated interest-bearing deposit account, and interest thereon shall form part of the Distribution Moneys for payment under Section 3.01(a)(1) or 3.01(a)(2). |
(c) | Notwithstanding any other provision of this Agreement, during the existence of a Foreign Exchange Event, none of the Secured Parties shall be required to share with the others any Distribution Moneys in a currency other than the local currency of the jurisdiction of such recovery (in this Section 3.01(c) referred to as the “Local Currency”) or proceeds of any Distribution Moneys which it recovers pro rata in accordance with Section 3.01(a) and 3.01(b) in any currency other than the Local Currency. |
(a) | Until the 2010 Notes Discharge Date, the 2010 Security Trustee (acting on instructions of the 2010 Notes Trustee) shall be obliged to notify the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee and the 2014 Guarantor promptly: |
(i) | in the event that the 2010 Security Trustee becomes aware that the 2010 Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2010 Notes Debt have become immediately due and payable under Section 6.2 of the 2010 Indenture; and |
(iii) | upon the 2010 Notes Trustee first making demand with respect to all or any part of the 2010 Notes Debt. |
(b) | The 2011 Trustee shall be obliged to notify the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee and the 2014 Guarantor, promptly: |
(i) | in the event that the 2011 Trustee becomes aware that the 2011 Notes Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2011 Notes Debt have become immediately due and payable under Section 6.02 of the 2011 Indenture; and |
(iii) | upon first making demand with respect to all or any part of the 2011 Notes Debt. |
(c) | The 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan) shall be obliged to notify the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 RCF Agent, the 2014 Trustee and the 2014 Guarantor, promptly: |
(i) | in the event that the 2014 Term Loan Agent becomes aware that the 2014 Term Loan Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2014 Term Loan Debt have become immediately due and payable under Section 6.01 of the 2014 Term Loan; and |
(iii) | upon first making demand with respect to all or any part of the 2014 Term Loan Debt. |
(d) | The 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF) shall be obliged to notify the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 Term Loan Agent, the 2014 Trustee and the 2014 Guarantor, promptly: |
(i) | in the event that the 2014 RCF Agent becomes aware that the 2014 RCF Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2014 RCF Debt have become immediately due and payable under Section 6.01 of the 2014 RCF; and |
(iii) | upon first making demand with respect to all or any part of the 2014 RCF Debt. |
(e) | The 2014 Trustee shall be obliged to notify the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent and the 2014 Guarantor, promptly: |
(i) | in the event that the 2014 Trustee becomes aware that the 2014 Notes Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2014 Notes Debt have become immediately due and payable under Section 6.2 of the 2014 Indenture; and |
(iii) | upon first making demand with respect to all or any part of the 2014 Notes Debt. |
(f) | The 2014 Guarantor shall be obliged to notify the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent and the 2014 Trustee promptly: |
(i) | in the event that the 2014 Guarantor becomes aware that the 2014 Reimbursement Security has become enforceable; |
(ii) | in the event that amounts outstanding in respect of the 2014 Reimbursement Debt have become immediately due and payable under Section 6.01 of the 2014 Reimbursement Agreement; and |
(iii) | upon the 2014 Guarantor first making demand with respect to all or any part of the 2014 Reimbursement Debt. |
(g) | If any of the Security becomes enforceable, the 2010 Security Trustee (acting on the instructions of the 2010 Notes Trustee, and only until the 2010 Notes Discharge Date), the 2011 Trustee (acting on its own behalf), the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan), the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF), the 2014 Trustee (acting on its own behalf) and the 2014 Guarantor (acting on its own behalf) may (but shall not be obliged to) consult with the other Secured Parties and endeavour to agree a course of action under the Finance Documents. Notwithstanding the foregoing, at any time that any of the Security has become enforceable, the 2010 Security Trustee (acting on the instructions of the 2010 Notes Trustee, and only until the 2010 Notes Discharge Date), the 2011 Trustee (acting on its own behalf), the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan), the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF), the 2014 Trustee (acting on its own behalf) and the 2014 Guarantor (acting on its own behalf), may, by notice to the other Secured Parties (an “Enforcement Notice”), request a joint enforcement of the Security in accordance with paragraph (i). |
(h) | For the avoidance of doubt, following the 2010 Notes Discharge Date, neither the 2010 Security Trustee nor the 2010 Notes Trustee will have any right or obligation to issue an Enforcement Notice, nor will the Secured Parties have any obligation to consult with or obtain the agreement of the 2010 Security Trustee and the 2010 Notes Trustee to issue an Enforcement Notice. |
(i) | If an Enforcement Notice is served by the 2010 Security Trustee (acting on the instructions of the 2010 Notes Trustee, and only until the 2010 Notes Discharge Date), the 2011 Trustee (acting on its own behalf), the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan), the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF), the 2014 Trustee (acting on its own behalf) and/or the 2014 Guarantor (acting on its own behalf), then the Secured Parties shall (to the extent not already so due and payable) declare all amounts of the 2010 Notes Debt, the 2011 Notes Debt, the 2014 Term Loan Debt, the 2014 RCF Debt, the 2014 Notes Debt and the 2014 Reimbursement Debt, respectively, to be immediately due and payable under Section 6.2 of the 2010 Indenture, Section 6.02 of the 2011 Indenture, Section 6.01 of the 2014 Term Loan, Section 6.01 of the 2014 RCF, Section 6.2 of the 2014 Indenture or Section 6.01 of the 2014 Reimbursement Agreement and shall co-operate with each other to enforce the Security on a pari passu basis and in accordance with the following provisions: |
(i) | the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security, the 2014 Notes Security and the 2014 Reimbursement Security shall be enforced jointly, including by means of an enforcement by the party holding the security right that is most senior in priority and, so far as practicable, by the same method; |
(ii) | such enforcement will be effected with the aim of maximising recoveries with the objective of achieving an expeditious realisation of assets subject to the Security; and |
(iii) | in the case of the exercise of a power of sale in accordance with the Security Documents, each of the Secured Parties shall execute such release or other necessary document (if any) so as to permit a good title free from any Security to be passed to the purchasers. |
(j) | For the avoidance of doubt, neither the 2010 Security Trustee (acting on instructions of the 2010 Notes Trustee, and only until the 2010 Notes Discharge Date), the 2011 Trustee (acting on its own behalf), the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan), the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF), the 2014 Trustee (acting on its own behalf) nor the 2014 Guarantor (acting on its own behalf) shall be prevented from separately commencing enforcement action under the 2010 Security (until the 2010 Notes Discharge Date), the 2011 Notes Security, the 2014 Term Loan Security, the 2014 RCF Security, the 2014 Notes Security or the 2014 Reimbursement Security (as applicable), at any time prior to an Enforcement Notice having been served by the other Secured Parties, provided that, such Secured Party seeking to enforce its Security has delivered an Enforcement Notice on the other Secured Parties prior to commencing such action. |
(k) | Each of the Secured Parties shall keep the other Secured Parties informed of any proceedings to enforce the Security or any part thereof, any other proceedings against the Company and any other material matters which may affect the operation of this Agreement. |
(l) | In each case in the absence of manifest error: (i) until the 2010 Notes Discharge Date, the global notes representing the 2010 Notes and the relevant entries thereon shall be conclusive evidence of the principal amount of the 2010 Notes Debt from time to time; (ii) the global notes representing the 2011 Notes and the relevant entries thereon shall be conclusive evidence of the principal amount of the 2011 Notes Debt from time to time, (iii) the entries made in the account maintained by the 2014 Term Loan Agent shall be conclusive evidence of the principal amount outstanding of the 2014 Term Loan Debt from time to time, (iv) the entries made in the account maintained by the 2014 RCF Agent shall be conclusive evidence of the principal amount outstanding of the 2014 RCF Debt from time to time and (v) the global notes representing the 2014 Notes and the relevant entries thereon shall be conclusive evidence of the principal amount of the 2014 Notes Debt from time to time and (vi) the notification of the 2014 Guarantor to the Company pursuant to the 2014 Reimbursement Agreement shall be conclusive evidence of any amounts due with respect to the 2014 Reimbursement Debt from time to time. |
(a) | This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England. |
(b) | Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. There shall be one arbitrator and the appointing authority shall be the London Court of International Arbitration. The seat and place of arbitration shall be London, England and the English language shall be used throughout the arbitral proceedings. The Parties hereby waive any rights under the Arbitration Act 1996 or otherwise to appeal any arbitration award to, or to seek determination of a preliminary point of law by, the courts of England. |
(a) | This Agreement shall bind and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that none of the 2010 Notes Trustee, the 2010 Security Trustee, the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee, or the 2014 Guarantor shall assign or transfer any interest it has under this Agreement or the Security unless the assignee or transferee undertakes to be bound by the provisions of this Agreement. |
(b) | For the avoidance of doubt, the Obligors shall not have any rights under this Agreement, the provisions of which are only for the benefit of the 2010 Notes Trustee (until the 2010 Notes Discharge Date), the 2010 Security Trustee (until the 2010 Notes Discharge Date), the 2011 Trustee, the 2014 Term Loan Agent, the 2014 RCF Agent, the 2014 Trustee, or the 2014 Guarantor (as applicable). |
(c) | Except as provided in this Section 4.05, none of the terms of this Agreement are intended to be enforceable by any third party. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. |
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|
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ARTICLE I
|
Definitions and Accounting Terms
|
1
|
Section 1.01
|
Defined Terms
|
1
|
Section 1.02
|
Terms Generally
|
29
|
Section 1.03
|
Resolution of Drafting Ambiguities
|
30
|
Section 1.04
|
Fluctuations in the Exchange Rate of Currencies
|
30
|
ARTICLE II
|
THE CREDITS
|
30
|
Section 2.01
|
Term Loan Commitments
|
30
|
Section 2.02
|
Loan
|
30
|
Section 2.03
|
Requests for the Loan
|
30
|
Section 2.04
|
Funding of the Loan
|
31
|
Section 2.05
|
Reserved
|
31
|
Section 2.06
|
Termination and Reduction of Commitments
|
31
|
Section 2.07
|
Repayment of the Loan; Evidence of Debt
|
31
|
Section 2.08
|
Prepayment of the Loan
|
32
|
Section 2.09
|
Interest
|
32
|
Section 2.10
|
Reserved
|
33
|
Section 2.11
|
Increased Costs
|
33
|
Section 2.12
|
Reserved
|
34
|
Section 2.13
|
Illegality
|
34
|
Section 2.14
|
Taxes
|
35
|
Section 2.15
|
Payments Generally; Pro Rata Treatment; Sharing of Set offs
|
37
|
Section 2.16
|
Fees
|
38
|
ARTICLE III
|
Representations and Warranties
|
39
|
Section 3.01
|
Organization; Powers; Authorization; Enforceability
|
39
|
Section 3.02
|
Approvals; No Conflicts
|
39
|
Section 3.03
|
Financial Condition; No Material Adverse Change
|
39
|
Section 3.04
|
Litigation and Environmental Matters
|
40
|
Section 3.05
|
Solvency
|
40
|
Section 3.06
|
Margin Securities
|
40
|
Section 3.07
|
Pari Passu Ranking
|
41
|
Section 3.08
|
Filing or Stamp Tax
|
41
|
Section 3.09
|
Properties
|
41
|
Section 3.10
|
Compliance with Laws and Agreements
|
41
|
Section 3.11
|
Taxes
|
41
|
Section 3.12
|
Disclosure
|
41
|
Section 3.13
|
Subsidiaries
|
42
|
Section 3.14
|
Insurance
|
42
|
Section 3.15
|
Anti-Terrorism Laws; Anti-Corruption Laws
|
42
|
Section 3.16
|
Security Interest and Perfection
|
42
|
Section 3.17
|
Use of Proceeds
|
42
|
Section 3.18
|
Intellectual Property
|
43
|
ARTICLE IV
|
Conditions
|
43
|
Section 4.01
|
Effective Date
|
43
|
Section 4.02
|
Term Loan Credit Event
|
44
|
ARTICLE V
|
Covenants
|
46
|
Section 5.01
|
Information Undertakings
|
46
|
Section 5.02
|
Notices of Material Events
|
49
|
Section 5.03
|
Use of Proceeds
|
49
|
Section 5.04
|
Financial Covenants
|
50
|
Section 5.05
|
Authorizations
|
52
|
Section 5.06
|
Compliance with Laws
|
53
|
Section 5.07
|
Taxation
|
53
|
Section 5.08
|
Merger
|
53
|
Section 5.09
|
Change of Business
|
53
|
Section 5.10
|
Acquisitions
|
53
|
Section 5.11
|
Joint Ventures
|
54
|
Section 5.12
|
Pari Passu Ranking
|
55
|
Section 5.13
|
Negative Pledge
|
55
|
Section 5.14
|
Disposals
|
55
|
Section 5.15
|
Arm’s Length Basis
|
56
|
Section 5.16
|
Loans or Credit
|
57
|
Section 5.17
|
No Guarantees or Indemnities
|
57
|
Section 5.18
|
Financial Indebtedness
|
57
|
Section 5.19
|
Access
|
58
|
Section 5.20
|
Intellectual Property
|
58
|
Section 5.21
|
Amendments
|
59
|
Section 5.22
|
Restricted Payments
|
59
|
Section 5.23
|
Additional Guarantees
|
60
|
Section 5.24
|
2015 Refinancing Covenant
|
60
|
ARTICLE VI
|
Events of Default
|
60
|
Section 6.01
|
Events of Default
|
60
|
ARTICLE VII
|
The Administrative Agent
|
63
|
Section 7.01
|
Appointment and Authority
|
63
|
Section 7.02
|
Administrative Agent Individually
|
63
|
Section 7.03
|
Duties of Administrative Agent; Exculpatory Provisions
|
64
|
Section 7.04
|
Reliance by Administrative Agent
|
65
|
Section 7.05
|
Delegation of Duties
|
65
|
Section 7.06
|
Resignation of Administrative Agent
|
65
|
Section 7.07
|
Non Reliance on Administrative Agent and Other Lenders
|
66
|
ARTICLE VIII
|
Miscellaneous
|
67
|
Section 8.01
|
Notices
|
67
|
Section 8.02
|
Waivers; Amendments
|
68
|
Section 8.03
|
Expenses; Indemnity; Damage Waiver
|
69
|
Section 8.04
|
Successors and Assigns
|
70
|
Section 8.05
|
Survival
|
72
|
Section 8.06
|
Counterparts; Integration; Effectiveness
|
72
|
Section 8.07
|
Severability
|
72
|
Section 8.08
|
Right of Setoff
|
73
|
Section 8.09
|
Governing Law; Jurisdiction; Consent to Service of Process
|
73
|
Section 8.10
|
Waiver of Jury Trial
|
74
|
Section 8.11
|
Headings
|
74
|
Section 8.12
|
Confidentiality
|
74
|
Section 8.13
|
Interest Rate Limitation
|
75
|
Section 8.14
|
No Waiver; Remedies
|
76
|
Section 8.15
|
USA Patriot Act Notice and “Know Your Customer” Provisions
|
76
|
Section 8.16
|
Judgment Currency
|
76
|
Section 8.17
|
Independence of Covenants
|
77
|
Section 8.18
|
No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders
|
77
|
Section 8.19
|
Restatement Effective Date
|
77
|
SCHEDULES:
|
||
Schedule 3.08
|
-
|
Filing or Stamp Tax
|
Schedule 3.13
|
-
|
Subsidiaries
|
EXHIBITS:
|
||
Exhibit A
|
-
|
Form of Guarantee
|
Exhibit B
|
-
|
Form of Borrowing Request
|
Exhibit C
|
-
|
Form of Term Loan Note
|
Exhibit D
|
-
|
Form of Compliance Certificate
|
Exhibit E
|
-
|
Confidentiality Agreement
|
Exhibit F
|
-
|
Form of Borrower Pledge Agreement
|
Exhibit G
|
-
|
Form of CME NV Pledge Agreement
|
Exhibit H
|
-
|
Form of Amended Intercreditor Agreement
|
Exhibit I
|
-
|
Form of Term Warrant Agreement
|
Exhibit J
|
-
|
Form of Unit Warrant Agreement
|
(c) | commercial paper not convertible or exchangeable to any other security: |
(i) | for which a recognised trading market exists; |
(ii) | issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State; |
(iii) | which matures within one year after the relevant date of calculation; and |
(iv) | which has a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating; |
(a)
|
the aggregate principal amount of the Loan outstanding on that date;
|
(b)
|
before taking into account any Exceptional Items;
|
(c)
|
before taking into account any Pension Items;
|
(d)
|
excluding the charge to profit represented by the expensing of stock-based compensation; and
|
(e) | excluding the results from discontinued operations; |
(b)
|
an acquisition of shares or securities pursuant to a Permitted Share Issue;
|
(c)
|
an acquisition of securities which are Cash Equivalent Investments; or
|
(c)
|
of receivables pursuant to the Factoring Facility Agreement;
|
(d)
|
of obsolete or redundant vehicles, plant and equipment for Cash;
|
(g)
|
to a Joint Venture, to the extent permitted by Section 5.11;
|
(c)
|
arising under any Treasury Transaction;
|
(a)
|
the endorsement of negotiable instruments in the ordinary course of trade;
|
(d)
|
any guarantee permitted under Section 5.18;
|
(a)
|
its jurisdiction of incorporation;
|
(b)
|
any jurisdiction where it conducts a substantive part of its business; and
|
(1)
|
the end of the Financial Year ending on December 31, 2014; and
|
(2)
|
the end of each subsequent Financial Year,
|
(1)
|
the end of the Accounting Quarter ending on September 30, 2014; and
|
(2)
|
the end of each subsequent Accounting Quarter,
|
Test Date
|
Minimum Cashflow
Cover Ratio
|
December 31, 2015
|
0.250 to 1.00
|
March 31, 2016
|
0.300 to 1.00
|
June 30, 2016
|
0.350 to 1.00
|
September 30, 2016
|
0.400 to 1.00
|
December 31, 2016
|
0.425 to 1.00
|
March 31, 2017
|
0.450 to 1.00
|
June 30, 2017
|
0.500 to 1.00
|
September 30, 2017 and thereafter
|
0.500 to 1.00
|
Test Date
|
Minimum Interest
Cover Ratio
|
September 30, 2014
|
0.20 to 1.00
|
December 31, 2014
|
0.60 to 1.00
|
March 31, 2015
|
0.65 to 1.00
|
June 30, 2015
|
0.65 to 1.00
|
September 30, 2015
|
0.65 to 1.00
|
December 31, 2015
|
0.75 to 1.00
|
March 31, 2016
|
0.75 to 1.00
|
June 30, 2016
|
0.80 to 1.00
|
September 30, 2016
|
0.80 to 1.00
|
December 31, 2016
|
0.85 to 1.00
|
March 31, 2017
|
0.85 to 1.00
|
June 30, 2017
|
0.90 to 1.00
|
September 30, 2017 and thereafter
|
0.90 to 1.00
|
Test Date
|
Maximum
Consolidated Total
Leverage Ratio
|
September 30, 2014
|
42.00 to 1.00
|
December 31, 2014
|
15.50 to 1.00
|
March 31, 2015
|
14.50 to 1.00
|
June 30, 2015
|
13.50 to 1.00
|
September 30, 2015
|
13.50 to 1.00
|
December 31, 2015
|
12.50 to 1.00
|
March 31, 2016
|
12.00 to 1.00
|
June 30, 2016
|
11.50 to 1.00
|
September 30, 2016
|
11.00 to 1.00
|
December 31, 2016
|
11.00 to 1.00
|
March 31, 2017
|
10.50 to 1.00
|
June 30, 2017
|
10.50 to 1.00
|
September 30, 2017 and thereafter
|
10.00 to 1.00
|
(1)
|
no Event of Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;
|
(2)
|
in the case of acquisition of a company or partnership, it is incorporated with limited liability or is a limited liability partnership and it is engaged in a business substantially the same as that carried on by the Group; and
|
(3)
|
the Total Purchase Price for such acquisition, when aggregated with the Total Purchase Price for any other acquisitions under this paragraph (b)(i) does not in any Financial Year of Borrower exceed $5,000,000 or its equivalent;
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD, as Borrower
|
||
By:
|
/s/ David Sturgeon | |
Name: David Sturgeon
|
||
Title: Chief Financial Officer
|
TIME WARNER INC., as Administrative Agent
|
||
By:
|
/s/ Edward B. Ruggiero | |
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
TIME WARNER INC., as Lender
|
||
By:
|
/s/ Edward B. Ruggiero | |
Name: Edward B. Ruggiero
|
||
Title: Senior Vice President & Treasurer
|
TIME WARNER MEDIA HOLDINGS B.V., as Lender
|
||
By:
|
/s/ Stephen N. Kapner | |
Name: Stephen N. Kapner
|
||
Title: Director
|
Company
|
Jurisdiction of Organization
|
Ownership/Voting Interest
|
BTV Media Group EAD
|
Bulgaria
|
94%
|
Media Pro Sofia EOOD*
|
Bulgaria
|
100%
|
Radiocompany C.J. OOD
|
Bulgaria
|
69.56%
|
Media Pro Audiovizual d.o.o.*
|
Croatia
|
100%
|
Nova TV d.d.
|
Croatia
|
100%
|
Central European Media Enterprises N.V.
|
Curaçao
|
100%
|
CET 21 spol. s r.o.
|
Czech Republic
|
100%
|
CME Services s.r.o.
|
Czech Republic
|
100%
|
Čertova nevěsta, s.r.o.
|
Czech Republic
|
100%
|
Pro Digital S.R.L.
|
Moldova
|
100%
|
CME Bulgaria B.V.
|
Netherlands
|
94%
|
CME Development Financing B.V.
|
Netherlands
|
100%
|
CME Investments B.V.
|
Netherlands
|
100%
|
CME Media Enterprises B.V.
|
Netherlands
|
100%
|
CME Media Pro B.V.
|
Netherlands
|
100%
|
CME Media Pro Distribution B.V.
|
Netherlands
|
100%
|
CME Programming B.V.
|
Netherlands
|
100%
|
CME Slovak Holdings B.V.
|
Netherlands
|
100%
|
Hollywood Multiplex Operations S.R.L.
|
Romania
|
100%
|
Mediapro Magic Factory S.R.L.
|
Romania
|
100%
|
Media Pro Distribution S.R.L.
|
Romania
|
100%
|
Media Pro International S.A.*
|
Romania
|
100%
|
Mediapro Music Entertainment S.R.L.
|
Romania
|
100%
|
Media Pro Entertainment Romania S.A.
|
Romania
|
100%
|
Pro TV S.A.
|
Romania
|
100%
|
Pro Video S.R.L.
|
Romania
|
100%
|
Studiourile Media Pro S.A.
|
Romania
|
92.21%
|
MARKÍZA-SLOVAKIA, spol. s r.o.
|
Slovak Republic
|
100%
|
Kanal A d.o.o.
|
Slovenia
|
100%
|
MMTV 1 d.o.o.*
|
Slovenia
|
100%
|
POP TV d.o.o.
|
Slovenia
|
100%
|
Produkcija Plus d.o.o.
|
Slovenia
|
100%
|
TELEVIDEO d.o.o.
|
Slovenia
|
100%
|
CME Media Services Limited
|
United Kingdom
|
100%
|
Page
|
|||
ARTICLE I Definitions and Accounting Terms
|
1
|
||
Section 1.01
|
Defined Terms
|
1
|
|
Section 1.02
|
Terms Generally
|
31
|
|
Section 1.03
|
Resolution of Drafting Ambiguities
|
31
|
|
Section 1.04
|
Fluctuations in the Exchange Rate of Currencies
|
32
|
|
ARTICLE II THE CREDITS
|
32
|
||
Section 2.01
|
Revolving Loan Commitments
|
32
|
|
Section 2.02
|
Loans
|
32
|
|
Section 2.03
|
Requests for Loans
|
33
|
|
Section 2.04
|
Funding of Loans
|
33
|
|
Section 2.05
|
Interest Elections
|
34
|
|
Section 2.06
|
Termination and Reduction of Commitments
|
35
|
|
Section 2.07
|
Repayment of Loans; Evidence of Debt
|
35
|
|
Section 2.08
|
Prepayment of Loans
|
35
|
|
Section 2.09
|
Interest
|
36
|
|
Section 2.10
|
Alternate Rate of Interest
|
37
|
|
7Section 2.11
|
Increased Costs
|
38
|
|
Section 2.12
|
Break Funding Payments
|
39
|
|
Section 2.13
|
Illegality
|
39
|
|
Section 2.14
|
Taxes
|
40
|
|
Section 2.15
|
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs
|
42
|
|
Section 2.16
|
Commitment Fee
|
43
|
|
ARTICLE III Representations and Warranties
|
43
|
||
Section 3.01
|
Organization; Powers; Authorization; Enforceability
|
44
|
|
Section 3.02
|
Approvals; No Conflicts
|
|
|
Section 3.03
|
Financial Condition; No Material Adverse Change
|
44
|
|
Section 3.04
|
Litigation and Environmental Matters
|
44
|
|
Section 3.05
|
Solvency
|
44
|
|
Section 3.06
|
Margin Securities
|
45
|
|
Section 3.07
|
Pari Passu Ranking
|
45
|
|
Section 3.08
|
Filing or Stamp Tax
|
45
|
|
Section 3.09
|
Properties
|
45
|
|
Section 3.10
|
Compliance with Laws and Agreements
|
45
|
|
Section 3.11
|
Taxes
|
46
|
|
Section 3.12
|
Disclosure
|
46
|
|
Section 3.13
|
Subsidiaries
|
46
|
|
Section 3.14
|
Insurance
|
47
|
|
Section 3.15
|
Anti-Terrorism Laws; Anti-Corruption Laws
|
47
|
|
Section 3.16
|
Security Interest and Perfection
|
47
|
|
Section 3.17
|
Use of Proceeds
|
47
|
|
Section 3.18
|
Intellectual Property
|
47
|
ARTICLE IV Conditions
|
48
|
||
Section 4.01
|
Effective Date
|
48
|
|
Section 4.02
|
Revolving Loan Credit Event
|
49
|
|
ARTICLE V Covenants
|
50
|
||
Section 5.01
|
Information Undertakings
|
50
|
|
Section 5.02
|
Notices of Material Events
|
53
|
|
Section 5.03
|
Use of Proceeds
|
54
|
|
Section 5.04
|
Financial Covenants
|
54
|
|
Section 5.05
|
Authorizations
|
57
|
|
Section 5.06
|
Compliance with Laws
|
57
|
|
Section 5.07
|
Taxation
|
57
|
|
Section 5.08
|
Merger
|
58
|
|
Section 5.09
|
Change of Business
|
58
|
|
Section 5.10
|
Acquisitions
|
58
|
|
Section 5.11
|
Joint Ventures
|
59
|
|
Section 5.12
|
Pari Passu Ranking
|
59
|
|
Section 5.13
|
Negative Pledge
|
60
|
|
Section 5.14
|
Disposals
|
60
|
|
Section 5.15
|
Arm’s Length Basis
|
61
|
|
Section 5.16
|
Loans or Credit
|
61
|
|
Section 5.17
|
No Guarantees or Indemnities
|
62
|
|
Section 5.18
|
Financial Indebtedness
|
62
|
|
Section 5.19
|
Access
|
62
|
|
Section 5.20
|
Intellectual Property
|
63
|
|
Section 5.21
|
Amendments
|
63
|
|
Section 5.22
|
Restricted Payments
|
63
|
|
Section 5.23
|
Additional Guarantees
|
64
|
|
ARTICLE VI Events of Default
|
65
|
||
Section 6.01
|
Events of Default
|
65
|
|
ARTICLE VII The Administrative Agent
|
67
|
||
Section 7.01
|
Appointment and Authority
|
67
|
|
Section 7.02
|
Administrative Agent Individually
|
68
|
|
Section 7.03
|
Duties of Administrative Agent; Exculpatory Provisions
|
68
|
|
Section 7.04
|
Reliance by Administrative Agent
|
69
|
|
Section 7.05
|
Delegation of Duties
|
70
|
|
Section 7.06
|
Resignation of Administrative Agent
|
70
|
|
Section 7.07
|
Non‑Reliance on Administrative Agent and Other Lenders
|
71
|
|
ARTICLE VIII Miscellaneous
|
71
|
||
Section 8.01
|
Notices
|
71
|
|
Section 8.02
|
Waivers; Amendments
|
73
|
|
Section 8.03
|
Expenses; Indemnity; Damage Waiver
|
73
|
|
Section 8.04
|
Successors and Assigns
|
75
|
|
Section 8.05
|
Survival
|
76
|
Section 8.06
|
Counterparts; Integration; Effectiveness
|
77
|
|
Section 8.07
|
Severability
|
77
|
|
Section 8.08
|
Right of Setoff
|
77
|
|
Section 8.09
|
Governing Law; Jurisdiction; Consent to Service of Process
|
77
|
|
Section 8.10
|
Waiver of Jury Trial
|
78
|
|
Section 8.11
|
Headings
|
79
|
|
Section 8.12
|
Confidentiality
|
79
|
|
Section 8.13
|
Interest Rate Limitation
|
80
|
|
Section 8.14
|
No Waiver; Remedies
|
80
|
|
Section 8.15
|
USA Patriot Act Notice and “Know Your Customer” Provisions
|
80
|
|
Section 8.16
|
Judgment Currency
|
81
|
|
Section 8.17
|
Independence of Covenants
|
81
|
|
Section 8.18
|
No Personal Liability of Directors, Officers, Employees, Incorporators or Stockholders
|
81
|
SCHEDULES:
|
||
Schedule 2.01
|
‑
|
Commitments
|
Schedule 3.08
|
-
|
Filing or Stamp Tax
|
Schedule 3.13
|
-
|
Subsidiaries
|
EXHIBITS:
|
||
Exhibit A
|
‑
|
Form of Guarantee
|
Exhibit B
|
‑
|
Form of Borrowing Request
|
Exhibit C
|
‑
|
Form of Revolving Loan Note
|
Exhibit D
|
‑
|
Form of Compliance Certificate
|
Exhibit E
|
‑
|
Confidentiality Agreement
|
Exhibit F
|
‑
|
Form of Borrower Pledge Agreement
|
Exhibit G
|
‑
|
Form of CME NV Pledge Agreement
|
Exhibit H
|
‑
|
Form of Amended Intercreditor Agreement
|
(c) | commercial paper not convertible or exchangeable to any other security: |
(i) | for which a recognised trading market exists; |
(ii) | issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State; |
(iii) | which matures within one year after the relevant date of calculation; and |
(iv) | which has a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating; |
(a)
|
the aggregate principal amount of the Loans outstanding on that date;
|
(b) |
before taking into account any Exceptional Items;
|
(c) | before taking into account any Pension Items; |
(d) |
excluding the charge to profit represented by the expensing of stock-based compensation; and
|
(e) | excluding the results from discontinued operations; |
(b) | an acquisition of shares or securities pursuant to a Permitted Share Issue; |
(c) |
an acquisition of securities which are Cash Equivalent Investments; or
|
(c) |
of receivables pursuant to the Factoring Facility Agreement;
|
(d) | of obsolete or redundant vehicles, plant and equipment for Cash; |
(g) | to a Joint Venture, to the extent permitted by Section 5.11; |
(c) | arising under any Treasury Transaction; |
(a) | the endorsement of negotiable instruments in the ordinary course of trade; |
(d) | any guarantee permitted under Section 5.18; |
(a) |
its jurisdiction of incorporation;
|
(b) | any jurisdiction where it conducts a substantive part of its business; and |
(1) | the end of the Financial Year ending on December 31, 2014; and |
(2) |
the end of each subsequent Financial Year, the audited consolidated financial statements of Borrower for that Financial Year; and
|
(1) | the end of the Accounting Quarter ending on September 30, 2014; and |
(2) | the end of each subsequent Accounting Quarter, |
Test Date
|
Minimum Cashflow
Cover Ratio
|
December 31, 2015
|
0.250 to 1.00
|
March 31, 2016
|
0.300 to 1.00
|
June 30, 2016
|
0.350 to 1.00
|
September 30, 2016
|
0.400 to 1.00
|
December 31, 2016
|
0.425 to 1.00
|
March 31, 2017
|
0.450 to 1.00
|
June 30, 2017
|
0.500 to 1.00
|
September 30, 2017 and thereafter
|
0.500 to 1.00
|
Test Date
|
Minimum Interest
Cover Ratio
|
September 30, 2014
|
0.20 to 1.00
|
December 31, 2014
|
0.60 to 1.00
|
March 31, 2015
|
0.65 to 1.00
|
June 30, 2015
|
0.65 to 1.00
|
September 30, 2015
|
0.65 to 1.00
|
December 31, 2015
|
0.75 to 1.00
|
March 31, 2016
|
0.75 to 1.00
|
June 30, 2016
|
0.80 to 1.00
|
September 30, 2016
|
0.80 to 1.00
|
December 31, 2016
|
0.85 to 1.00
|
March 31, 2017
|
0.85 to 1.00
|
June 30, 2017
|
0.90 to 1.00
|
September 30, 2017 and thereafter
|
0.90 to 1.00
|
Test Date
|
Maximum
Consolidated Total
Leverage Ratio
|
September 30, 2014
|
42.00 to 1.00
|
December 31, 2014
|
15.50 to 1.00
|
March 31, 2015
|
14.50 to 1.00
|
June 30, 2015
|
13.50 to 1.00
|
September 30, 2015
|
13.50 to 1.00
|
December 31, 2015
|
12.50 to 1.00
|
March 31, 2016
|
12.00 to 1.00
|
June 30, 2016
|
11.50 to 1.00
|
September 30, 2016
|
11.00 to 1.00
|
December 31, 2016
|
11.00 to 1.00
|
March 31, 2017
|
10.50 to 1.00
|
June 30, 2017
|
10.50 to 1.00
|
September 30, 2017 and thereafter
|
10.00 to 1.00
|
(1) | no Event of Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition; |
(2) | in the case of acquisition of a company or partnership, it is incorporated with limited liability or is a limited liability partnership and it is engaged in a business substantially the same as that carried on by the Group; and |
(3) | the Total Purchase Price for such acquisition, when aggregated with the Total Purchase Price for any other acquisitions under this paragraph (b)(i) does not in any Financial Year of Borrower exceed $5,000,000 or its equivalent; |
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD, as Borrower
|
|||
By:
|
/s/ David Sturgeon | ||
Name: David Sturgeon
|
|||
Title: Chief Financial Officer
|
TIME WARNER INC., as Administrative Agent
|
|||
By:
|
/s/ Edward B. Ruggiero | ||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Treasurer
|
|||
TIME WARNER INC., as Lender
|
|||
By:
|
/s/ Edward B. Ruggiero | ||
Name: Edward B. Ruggiero
|
|||
Title: Senior Vice President & Treasurer
|
Lender
|
Commitment (US$)
|
|
Time Warner Inc.
|
US$115,000,000
|
|
Total
|
US$115,000,000
|
Company
|
Jurisdiction of Organization
|
Ownership/Voting Interest
|
BTV Media Group EAD
|
Bulgaria
|
94%
|
Media Pro Sofia EOOD*
|
Bulgaria
|
100%
|
Radiocompany C.J. OOD
|
Bulgaria
|
69.56%
|
Media Pro Audiovizual d.o.o.*
|
Croatia
|
100%
|
Nova TV d.d.
|
Croatia
|
100%
|
Central European Media Enterprises N.V.
|
Curaçao
|
100%
|
CET 21 spol. s r.o.
|
Czech Republic
|
100%
|
CME Services s.r.o.
|
Czech Republic
|
100%
|
Čertova nevěsta, s.r.o.
|
Czech Republic
|
100%
|
Pro Digital S.R.L.
|
Moldova
|
100%
|
CME Bulgaria B.V.
|
Netherlands
|
94%
|
CME Development Financing B.V.
|
Netherlands
|
100%
|
CME Investments B.V.
|
Netherlands
|
100%
|
CME Media Enterprises B.V.
|
Netherlands
|
100%
|
CME Media Pro B.V.
|
Netherlands
|
100%
|
CME Media Pro Distribution B.V.
|
Netherlands
|
100%
|
CME Programming B.V.
|
Netherlands
|
100%
|
CME Slovak Holdings B.V.
|
Netherlands
|
100%
|
Hollywood Multiplex Operations S.R.L.
|
Romania
|
100%
|
Mediapro Magic Factory S.R.L.
|
Romania
|
100%
|
Media Pro Distribution S.R.L.
|
Romania
|
100%
|
Media Pro International S.A.*
|
Romania
|
100%
|
Mediapro Music Entertainment S.R.L.
|
Romania
|
100%
|
Media Pro Entertainment Romania S.A.
|
Romania
|
100%
|
Pro TV S.A.
|
Romania
|
100%
|
Pro Video S.R.L.
|
Romania
|
100%
|
Studiourile Media Pro S.A.
|
Romania
|
92.21%
|
MARKÍZA-SLOVAKIA, spol. s r.o.
|
Slovak Republic
|
100%
|
Kanal A d.o.o.
|
Slovenia
|
100%
|
MMTV 1 d.o.o.*
|
Slovenia
|
100%
|
POP TV d.o.o.
|
Slovenia
|
100%
|
Produkcija Plus d.o.o.
|
Slovenia
|
100%
|
TELEVIDEO d.o.o.
|
Slovenia
|
100%
|
CME Media Services Limited
|
United Kingdom
|
100%
|
· | Improves debt maturity profile with nearest maturity now at the end of 2017 |
· | Secures attractive pricing on new debt with credit support from Time Warner |
· | Increases free cash flow through option to pay credit support fees and interest in kind for potential use in reducing the principal amount of its 15% Senior Secured Notes due 2017 |
· | Significantly reduces borrowing costs under existing Revolving Credit Facility |
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