SUPPLEMENTAL AGREEMENT relating to the LOAN AGREEMENT DATED 21 JULY, 2006 (as amended by an Amendatory Letter Agreement dated 16 November, 2006) between CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. and EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT Dated...
(Operation
Number 36371)
SUPPLEMENTAL
AGREEMENT
relating
to the
LOAN
AGREEMENT DATED 21 JULY, 2006
(as
amended by an Amendatory Letter Agreement dated 16 November,
2006)
between
and
EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
Dated
August 22, 2007
SUPPLEMENTAL
LOAN AGREEMENT
SUPPLEMENTAL
LOAN AGREEMENT (this “Supplemental
Agreement”) dated August 22, 2007 between CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD. a company incorporated and existing
under the laws of Bermuda (the "Borrower"), and the EUROPEAN BANK FOR
RECONSTRUCTION AND DEVELOPMENT, an international organisation formed by
treaty ("EBRD").
WHEREAS:
(A)
This Supplemental Agreement is supplemental to a Loan Agreement dated 21 July,
2006, as amended by an Amendatory Letter Agreement dated 16 November, 2006
(together the "Original Loan Agreement") made between the Borrower and EBRD,
whereby EBRD agreed to lend to the Borrower a maximum aggregate principal amount
not to exceed €100,000,000 consisting of:
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(1)
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the
A Loan in an amount not to exceed €50,000,000;
and
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(2)
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the
B Loan in an amount not to exceed
€50,000,000.
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(B) By
a loan agreement dated on or about the date hereof (the “New Loan Agreement”)
between the Borrower and EBRD, EBRD has agreed to lend to the Borrower a maximum
aggregate additional principal amount of €50,000,000, consisting
of:
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(1)
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the
A Loan (as defined thereunder) in an amount not to exceed €25,000,000;
and
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(2)
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the
B Loan (as defined thereunder) in an amount not to exceed
€25,000,000.
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(C) The
Parties have agreed to amend the Original Loan Agreement.
NOW
IT IS HEREBY AGREED as follows:
ARTICLE
I – INTERPRETATION
Section
1.01. Definitions
Terms
defined in
the Original Loan Agreement shall, unless otherwise defined or the context
otherwise requires, have the same meanings in this Supplemental
Agreement.
Section
1.02. Interpretation
(a) In
this
Supplemental Agreement, the headings are inserted for convenience of reference
only and shall not affect the interpretation of this Supplemental
Agreement.
(b) Subject to the provisions contained herein, the Original Loan Agreement shall remain in full force and effect and this Supplemental Agreement and the Original Loan Agreement shall be read and construed as one document and any reference therein to "herein", "hereunder", the "Loan Agreement", "this Agreement" and similar expressions shall be read and construed as a reference to the Original Loan Agreement as amended by this Supplemental Agreement and references in the Original Loan Agreement to representations or to other provisions contained in the Original Loan Agreement shall be read and construed as including references to representations and other provisions contained in this Supplemental Agreement.
(c)
This
Supplemental Agreement constitutes a Financing Agreement.
ARTICLE
II – AMENDMENTS TO ORIGINAL LOAN AGREEMENT
Section
2.01. Amendments to Original Loan
Agreement
It
is hereby agreed that with effect
on and from the date hereof the Original Loan Agreement is amended as
follows:
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(1)
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In
Section 1.01, the definition of "Margin" shall be substituted the
following definition:
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" “Margin” means 1.625% per annum.";
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(2)
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Sections
3.04(a)(2) and (3) shall be amended to the effect that, on and from
the
date hereof until the Final Maturity Date, the Borrower shall pay
to EBRD
a commitment charge at the rate of 0.8125% per annum on so much of
the A
Loan as has not, from time to time, been disbursed to the Borrower
or
cancelled and 0.8125% per annum on so much of the B Loan as has not,
from
time to time, been disbursed to the Borrower or
cancelled.
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(3)
(a)
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In
Section 1.01, the following definitions shall be amended to read
in
identical terms to the same definitions in Section 1.01 of the New
Loan
Agreement:
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(i)
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“Available
Amount”;
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(ii)
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“Interest
Payment Date”; and
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(iii)
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“Interest
Period”.
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(b)
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In
Section 1.01, the following new definitions shall be inserted in
the
correct alphabetical ordering to read in identical terms to the same
definitions in Section 1.01 of the New Loan
Agreement:
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(i)
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“Quarterly
Date”; and
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(ii)
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“Reduction
Date”.
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(c)
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A
new Section 3.05(b) shall be inserted (with consequential renumbering)
to
read in identical terms to Section 3.05(b) of the New Loan
Agreement.
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(d)
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The
following Sections and Exhibit shall be amended to read in identical
terms
to the same Sections and Exhibit in the New Loan
Agreement:
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(i)
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Section
3.07;
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(ii)
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Section
3.13(c);
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(iv)
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Section
3.14;
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(v)
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Section
4.02(g);
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(vi)
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Sections
7.01(a), (b) and (f);
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(vii)
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Section
8.02(b) (with consequential renumbering);
and
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(viii)
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Exhibit
A.
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(4)
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In
Section 3.04(a) and (c), each reference to “Interest Payment Date” shall
be amended to read “Quarterly
Date”.
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(5)
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The
table in Schedule 1 shall be substituted with the following
table:
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Period
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Commitment
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Facility
Agreement date to 10 May 2009
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€100,000,000
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11
May 2009 to 10 November 2009
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€85,000,000
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11
November 2009 to 10 May 2010
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€70,000,000
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11
May 2010 to 10 November 2010
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€55,000,000
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11
November 2010 to 10 May 2011
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€40,000,000
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ARTICLE
III – FEES, COSTS AND EXPENSES
Section
3.01. Fees
(a) The
Borrower shall pay to EBRD an amendment fee of 0.05% of the
Loan. Such amendment fee shall be due and payable not later than the
first Disbursement under the New Loan Agreement or seven Business Days after
the
date of this Supplemental Agreement, whichever is earlier.
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(b)
The charges, commissions and fees referred to in this Supplemental Agreement
are
exclusive of any Tax which might be chargeable in connection
therewith. If any Tax becomes chargeable, the Borrower shall pay such
Tax to EBRD at the same time as such charge, commission or fee becomes due
and
payable. For the avoidance of doubt, this Section 3.01(b) shall not
apply with respect to any Tax assessed on EBRD by reference to the net income
received or receivable (but not any sum deemed to be received or receivable)
by
EBRD.
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Section
3.02.
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Costs
and expenses
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Section
3.01 shall be without prejudice to the provisions of Section 5.13(b)(3) of
the
Original Loan Agreement which shall apply in relation to this Supplemental
Agreement and the amendments herein to the Original Loan Agreement.
ARTICLE
IV – REPRESENTATIONS AND WARRANTIES
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Section
4.01.
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Representations
and Warranties
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The
Borrower hereby represents and warrants as at the date hereof in the terms
of
the representations and warranties contained in Section 2 of the Original Loan
Agreement (other than any representation or warranty thereunder which specifies
such representation or warranty is provided thereunder “as of the date of this
Agreement”), with reference to the facts and circumstances subsisting as at the
date hereof and taking into account this Supplemental Agreement and the
amendments made by this Supplemental Agreement.
ARTICLE
V - MISCELLANEOUS
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Section
5.01.
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Continuation
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(a) Except
where inconsistent with the provisions of this Supplemental Agreement, the
Original Loan Agreement is hereby confirmed and shall remain in full force
and
effect.
(b)
Save to the extent specifically referred to in this Supplemental Agreement,
nothing contained in this Supplemental Agreement shall be construed as a waiver,
variation or amendment of the provisions of the Original Loan
Agreement.
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Section
5.02.
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Governing
Law
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This
Supplemental Agreement shall be governed by and construed in accordance with
English law.
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Section
5.03.
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Arbitration
and Jurisdiction
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(a) Any
dispute, controversy or claim arising out of or relating to this Supplemental
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 LCIA. 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 ▇▇▇ ▇▇▇▇ or otherwise to appeal any arbitration award to, or to
seek
determination of a preliminary point of law by, the courts of
England. The arbitral tribunal shall not be authorised to take or
provide, and the Borrower agrees that it shall not seek from any judicial
authority, any interim measures of protection or pre-award relief against EBRD,
any provisions of the UNCITRAL Arbitration Rules notwithstanding. The
arbitral tribunal shall have authority to consider and include in any
proceeding, decision or award any further dispute properly brought before it
by
EBRD (but no other party) insofar as such dispute arises out of any Financing
Agreement, but, subject to the foregoing, no other parties or other disputes
shall be included in, or consolidated with, the arbitral
proceedings. In any arbitral proceeding, the certificate of EBRD as
to any amount due to EBRD under any Financing Agreement shall be prima
facie evidence of such amount unless the findings in such certificate
involve manifest error.
(b) Notwithstanding
Section 5.03(a), this Supplemental Agreement and the other Financing Agreements,
and any rights of EBRD arising out of or relating to this Supplemental Agreement
or any other Financing Agreement, may, at the option of EBRD, be enforced by
EBRD in the courts of Bermuda or England or in any other courts having
jurisdiction. For the benefit of EBRD, the Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of the courts of England
with respect to any dispute, controversy or claim arising out of or relating
to
this Supplemental Agreement or any other Financing Agreement, or the breach,
termination or invalidity hereof or thereof. The Borrower hereby
irrevocably designates, appoints and empowers CME Development Corp. at its
registered office (being, on the date hereof, at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇) to act as its authorised agent to receive service
of
process and any other legal summons in England for purposes of any legal action
or proceeding brought by EBRD in respect of any Financing
Agreement. The Borrower hereby irrevocably consents to the service of
process or any other legal summons out of such courts by mailing copies thereof
by registered airmail postage prepaid to its address specified
herein. The Borrower covenants and agrees that, so long as it has any
obligations under this Supplemental Agreement, it shall maintain a duly
appointed agent to receive service of process and any other legal summons in
England for purposes of any legal action or proceeding brought by EBRD in
respect of any Financing Agreement and shall keep EBRD advised of the identity
and location of such agent. Nothing herein shall affect the right of
EBRD to commence legal actions or proceedings against the Borrower in any manner
authorised by the laws of any relevant jurisdiction. The commencement
by EBRD of legal actions or proceedings in one or more jurisdictions shall
not
preclude EBRD from commencing legal actions or proceedings in any other
jurisdiction, whether concurrently or not. The Borrower irrevocably
waives any objection it may now or hereafter have on any grounds whatsoever
to
the laying of venue of any legal action or proceeding and any claim it may
now
or hereafter have that any such legal action or proceeding has been brought
in
an inconvenient forum.
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(c) The
Borrower agrees to the provisions of this Section 5.03 solely because the
counterparty to this Supplemental Agreement as at the date hereof is
EBRD.
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Section
5.04.
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Privileges
and Immunities of EBRD
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Nothing
in this Supplemental Agreement shall be construed as a waiver, renunciation
or
other modification of any immunities, privileges or exemptions of EBRD accorded
under the Agreement Establishing the European Bank for Reconstruction and
Development, international convention or any applicable law.
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Section
5.05.
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Counterparts
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This Supplemental Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
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IN
WITNESS WHEREOF, the parties hereto, acting through their duly
authorised representatives, have caused this Supplemental Agreement to be signed
in their respective names as of the date first above written.
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Financial Officer
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EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Senior
Banker
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