Execution Copy
$15,000,000
REVOLVING FACILITY AGREEMENT
between
CME CZECH REPUBLIC B.V.
as Borrower
CME CZECH REPUBLIC II B.V.
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V.
CME MEDIA ENTERPRISES B.V.
as Guarantors
ING BANK N.V.
as Arranger, Facility Agent, Security Agent and Bank
▇▇▇▇▇▇▇▇ Chance
Amsterdam
CONTENTS
Clause Page No.
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation................................... 1
PART 2
THE FACILITY
2. The Facility.....................................................16
3. Utilisation of the Facility......................................16
PART 3
INTEREST
4. Payment and Calculation of Interest..............................18
5. Market Disruption and Alternative Interest Rates.................18
PART 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. Repayment........................................................19
7. Prepayment and Cancellation......................................22
PART 5
RISK ALLOCATION
8. Taxes............................................................23
9. Tax Receipts.....................................................24
10. Changes in Circumstances.........................................24
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
11. Representations..................................................27
12. Financial Information............................................32
13. Financial Condition..............................................34
14. Covenants........................................................38
15. Events of Default................................................50
PART 7
GUARANTEE
16. Guarantee and Indemnity..........................................56
PART 8
DEFAULT INTEREST AND INDEMNITY
17. Default Interest and Indemnity...................................59
PART 9
PAYMENTS
18. Currency of Account and Payment..................................61
19. Payments.........................................................61
20. Set-Off..........................................................63
21. Sharing..........................................................63
PART 10
FEES, COSTS AND EXPENSES
22. Commitment Commission and Fees...................................65
23. Costs and Expenses...............................................65
PART 11
AGENCY PROVISIONS
24. The Facility Agent, the Arranger and the Banks...................67
PART 12
ASSIGNMENTS AND TRANSFERS
25. Assignments and Transfers........................................72
PART 13
MISCELLANEOUS
26. Calculations and Evidence of Debt................................74
27. Remedies and Waivers, Partial Invalidity.........................74
28. Notices..........................................................75
29. Amendments.......................................................75
PART 14
LAW AND JURISDICTION
30. Law and Jurisdiction.............................................77
THE SCHEDULES
The First Schedule : The Banks
(Definition of "Bank" and "Commitment")
The Second Schedule : Form of Transfer Certificate
(Definition of "Transfer Certificate")
The Third Schedule : Condition Precedent Documents
(Clause 2.3(Conditions Precedent))
The Fourth Schedule : Notice of Drawdown
(Definition of "Notice of Drawdown")
The Fifth Schedule : Applicable Margin Financial Tests
(Definition of "Applicable Margin" and Clause 12.6
(Requirements as to Financial Statements))
The Sixth Schedule : Intercompany Indebtedness
(Definition of "Intercompany Loan")
The Seventh Schedule : Confidentiality Agreement
(Definition of "Confidentiality Agreement")
The Eighth Schedule : Litigation
(Clause 11.24 (Litigation))
The Ninth Schedule : Form of Compliance Certificate
(Definition of "Compliance Certificate")
THIS AGREEMENT is made on the 26th day of February 1999
BETWEEN:
(1) CME CZECH REPUBLIC B.V. (the "Borrower");
(2) CME CZECH REPUBLIC II B.V. ("CME CZECH II"), CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD. ("CME Ltd."), CENTRAL EUROPEAN MEDIA ENTERPRISES
N.V. ("CME N.V.") and CME MEDIA ENTERPRISES B.V. ("CME B.V.") (the
"Guarantors");
(3) ING BANK N.V. (the "Arranger");
(4) ING BANK N.V. as facility agent (the "Facility Agent"), security
agent (the "Security Agent") and Bank.
IT IS AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions In this Agreement the following terms have the meanings
given to them in this Clause 1.1.
"Advance" means, save as otherwise provided herein, an advance of funds made or
to be made by the Banks hereunder.
"Affiliate" means as to any person:
(a) any other person (other than a subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under
common control with such person; or
(b) any other person who is a director or officer:
(i) of such person;
(ii) of any subsidiary of such person; or
(iii) of any person described in clause (a) above.
For the purposes of this definition, control of a person shall mean the power,
direct or indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise.
"Agents" means the Facility Agent and the Security Agent (and "Agent" means any
one of them).
"Agreement on Pledge of Dividends of Nova TV" means the agreement on pledge of
dividends of Nova TV dated 26 February 1999 entered into by the Borrower in
favour of the Security Agent in relation to the Borrower's right, title and
interest in and to all distributions of profit (present and future) paid or to
be paid by Nova TV.
"Applicable Margin" means the rate per annum determined in accordance with the
tests set out in the Fifth Schedule.
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time less the aggregate of
its portions of the Advances which are then outstanding Provided that such
amount shall not be less than zero.
"Available Facility" means, at any time, the aggregate amount of the Available
Commitments at such time adjusted, in the case of any proposed drawdown, so as
to take into account:
(a) any reduction in the Commitment of a Bank pursuant to the
terms hereof;
(b) any Advance which, pursuant to any other drawdown, is to be
made; and
(c) any Advance which is due to be repaid and which is not in
default in payment,
on or before the proposed drawdown date.
5
"Bank" means:
(a) ING Bank N.V. (until it has ceased to be a party hereto in
accordance with the terms hereof); and
(b) any bank which has become a party hereto in accordance with
the provisions of Clause 25.4 (Assignments by Banks) or
Clause 25.5 (Transfers by Banks).
"Basle Paper" means the paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988 and prepared by the Basle
Committee on Banking Regulations and Supervision, as amended in November 1991.
"Borrower's Pledge of Bank Accounts" means the pledge agreement entitled
"Pledge of Bank Accounts" between the Borrower as pledgor and the Security
Agent as pledgee dated 26 February 1999 whereby the Borrower agrees, inter
alia, to pledge all its right, title and interest in and to each bank account
(present and future) specified therein in favour of the Security Agent.
"Borrower's Pledge of Intercompany Loans" means the pledge agreement entitled
"Pledge of Intercompany Loans" between the Borrower as pledgor and the Security
Agent as pledgee dated 26 February 1999 whereby the Borrower agrees, inter
alia, to pledge to the Security Agent all its right, title and interest in and
to all loans made by the Borrower to any member of the Group.
"Borrower Pledge of Shares" means the agreement and deed of pledge between CME
Czech II as pledgor, the Borrower and the Security Agent as pledgee dated 26
February 1999 whereby CME Czech II agrees, inter alia, to pledge all the issued
and outstanding share capital of the Borrower in favour of the Security Agent.
"Capital Adequacy Requirement" means a request or requirement relating to the
maintenance of capital by banks, including one which makes any change to, or is
based on any alteration in, the interpretation of the Basle Paper or which
increases the amounts of capital required thereunder, other than a request or
requirement made by way of implementation of the Basle Paper in the manner in
which it is being implemented at the date hereof.
"CET 21" means CET 21 s.r.o..
"CME B.V.'s Pledge of Receivables and Intercompany Loans" means the pledge
agreement entitled "Pledge of Receivables and Intercompany Loans" between CME
B.V. as pledgor and the Security Agent as pledgee dated 26 February 1999
whereby CME B.V. agrees, inter alia, to pledge to the Security Agent all its
right, title and interest:
(a) under or pursuant to the Network Access Agreement; and
(b) in and to all loans made by CME B.V. to the Borrower.
"CME Development Corporation" means CME Development Corporation, a corporation
6
incorporated under the General Corporation Law of the State of Delaware.
"CME Development Corporation's Pledge of Receivables" means the pledge
agreement entitled "Pledge of Receivables" between CME Development Corporation
as pledgor and the Security Agent as pledgee dated 26 February 1999 whereby CME
Development Corporation agrees, inter alia, to pledge to the Security Agent all
its right, title and interest under or pursuant to the Management Support
Agreement.
"CME Ltd.'s Bank Accounts" means its account numbered 2-100-20938-5 at Fleet
Bank, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and its account numbered
1010609107 at Bank of Bermuda, 6 Front Street, ▇▇▇▇▇▇▇▇, Bermuda.
"CME Ltd.'s Pledge of Intercompany Loans" means the pledge agreement entitled
"Pledge of Intercompany Loans" between CME Ltd. as pledgor and the Security
Agent as pledgee dated 26 February 1999 whereby CME Ltd. agrees, inter alia, to
pledge to the Security Agent all its right, title and interest in and to all
loans made by CME Ltd. to each member of the Group.
"CME Programming Services" means CME Programming Services Inc., a corporation
incorporated under the General Corporation Law of the State of Delaware.
"CME Programming Services' Pledge of Receivables" means the pledge agreement
entitled "Pledge of Receivables" between CME Programming Services as pledgor
and the Security Agent as pledgee dated 26 February 1999 whereby CME
Programming Services agrees, inter alia, to pledge to the Security Agent all
its right, title and interest under or pursuant to the programming services
agreement between CME Programming Services and Nova TV dated 27 June 1996.
"Commitment" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in the First Schedule (The
Banks).
"Compliance Certificate" means a certificate executed by the chief financial
officer or by two other authorised officers of CME Ltd. substantially in the
form set out in the Ninth Schedule.
"Computer System" means any computer systems, computer hardware and software
and all equipment operated by electronic means.
"Confidentiality Agreement" means, in relation to any Bank, a confidentiality
agreement entered into by it substantially in the form set out in the Seventh
Schedule.
"Consolidated Total Tangible Assets" shall have the meaning ascribed thereto in
Clause 13.2 (Definitions).
"CS Loan" means the principal amount made available by _eska Spo_itelna a.s.
under the CS Loan Agreement.
"CS Loan Agreement" means the loan agreement between CME B.V. and _eska
Spo_itelna a.s.
7
dated 1 August 1996 pursuant to which _eska Spo_itelna a.s. agreed to lend to
CME B.V. an aggregate principal amount of CZK 850,000,000.
"Debt Service" shall have the meaning ascribed thereto in Clause 13.2
(Definitions).
"December/June period" means any period commencing on 1 December in any year
from 1999 onwards and ending on the next succeeding 30 June.
"Dollar Collection Account" means, the Borrower's account numbered ▇▇.▇▇.▇▇.▇▇▇
with ING Bank N.V., Amsterdam branch.
"Event of Default" means any circumstances described as such in Clause 15.1
(Failure to Pay) to Clause 15.21 (Discontinuation of Broadcasting).
"Facility" means the dollar revolving loan facility granted to the Borrower in
this Agreement.
"Facility Documents" means any one or all of this Agreement, the Security
Documents, the Payment Instruction and any other document, instrument or
agreement entered into by any Obligor or Nova TV and the Arranger, the Facility
Agent and/or any Bank and designated as such by an Obligor and the Facility
Agent together with all amendments of, and supplements to any of the foregoing
(and "Facility Document" shall be construed accordingly).
"Facility Office" means, in relation to the Facility Agent or any Bank, the
office identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select.
"Fee Payment" means any Relevant Payment other than a dividend.
"Final Maturity Date" means 30 November 2001 (or, if such day is not a business
day, the immediately preceding business day).
"GAAP" means (i) the generally accepted accounting principles in effect from
time to time in the United States of America, applied on a consistent basis;
and (ii) in relation only to the Original Financial Statements of CME B.V., the
generally accepted accounting principles in effect from time to time in the
Netherlands, applied on a consistent basis.
"Group" means, at any time, CME Ltd., its subsidiaries, any person which,
directly or indirectly, is controlled by CME Ltd. and any person in which CME
Ltd., such subsidiary or such person has an equity interest.
"Guarantee" means, in relation to any person, any obligation of such person
directly or indirectly guaranteeing any indebtedness of any other person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect of such person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such indebtedness or other obligation
(whether arising by virtue of partnership
8
arrangements, by any agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, to
maintain financial statement conditions or otherwise); or
(b) entered into for the purpose of assuring in any other manner
the obligee of such indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part)
Provided that the term "Guarantee" shall not include endorsements of negotiable
instruments for collection or deposit in the ordinary course of business. The
term "Guarantee" or "Guaranteed" used as a verb has a corresponding meaning.
"Guilder Account" means, the Borrower's account numbered ▇▇.▇▇.▇▇.▇▇▇ with ING
Bank N.V., Amsterdam branch.
"Information Memorandum" means each of the documents dated August 1997,
December 1997 and October 1998 concerning the Borrower and the Guarantors
prepared in relation to this transaction and distributed by the Arranger to
selected banks during August 1997, December 1997 and October 1998.
"Instructing Group" means:
(a) whilst no Advances are outstanding hereunder, a Bank or group
of Banks whose Commitments amount (or, if each Bank's
Commitment has been reduced to zero, did immediately before
such reduction to zero, amount) in aggregate to more than 66_
per cent. of the Total Commitments; and
(b) whilst at least one Advance is outstanding hereunder, a Bank
or group of Banks to whom in aggregate more than 66_ per
cent. of the Loan is owed.
"Intercompany Loan Agreement" means each agreement entered into by the Borrower
or CME Ltd. as lender or creditor with any other member of the Group in
relation to any Intercompany Loan which shall comply with Clause 14.12 (Terms
of Intercompany Loans).
"Intercompany Loan" means the financial indebtedness specified in the Sixth
Schedule and each other loan granted by the Borrower or CME Ltd. to any other
member of the Group.
"July/November period" means any period commencing on 1 July in any year from
2000 onwards and ending on the next succeeding 30 November.
"LIBOR" means, in relation to any Advance or unpaid sum:
(i) the offered rate per annum (if any) appearing on page 3750 of
the Telerate screen which displays the London Interbank
Offered Rate for deposits in dollars and for the specified
period or any equivalent successor to such page at or about
11.00 a.m. on the Quotation Date for the specified period; or
9
(ii) if no such offered rate appears on the Telerate screen for
the purposes of paragraph (i) above, the rate per annum
determined by the Facility Agent to be equal to the
arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-sixteenth of
one per cent.) of the rates (as notified to the Facility
Agent) at which each of the Reference Banks was offering to
prime banks in the London Interbank Market deposits in
dollars and for the specified period at or about 11.00 a.m.
on the Quotation Date for such period;
and, for the purposes of this definition, "specified period" means the Term of
such Advance or, as the case may be, the period in respect of which LIBOR is to
be determined in relation to such unpaid sum.
"Limited Recourse Agreement" means the statement from _eska Spo_itelna a.s.,
dated 26 November, 1998 whereby _eska Spo_itelna a.s. declares, inter alia, its
consent to the transfer of a Participation Interest (as referred to therein) in
Nova TV from CME B.V. to the Borrower and that it has no claims whatsoever
against CME B.V. and the Borrower in respect of such transfer.
"Loan" means the aggregate principal amount for the time being outstanding
hereunder.
"Local Currency Collection Account" means the Borrower's account numbered
02.19.26.026 with ING Bank N.V., Amsterdam branch.
"Management Support Agreement" means the management support agreement dated 27
June 1996 and made between CME Development Corporation and Nova TV.
"Management Fees" means any management fees payable by Nova TV pursuant to the
Management Support Agreement or any replacement thereof.
"Network Access Agreement" means the network access agreement dated 27 June
1996 and made between CME B.V. and Nova TV.
"Network Access Fees" means any network access fees payable by Nova TV pursuant
to the Network Access Agreement or any replacement thereof.
"New Station" means a subsidiary of CME B.V. or CME Ltd. (other than (i) any
subsidiary of Nova TV, (ii) TVN and (iii) TV3) whose primary purpose is to
operate a television station.
"Notes" means the $100,000,000 CME Ltd. 9_% Senior Notes due 2004 and the 8_%
DM 140,000,000 Senior Notes due 2004.
"Notice of Drawdown" means a notice substantially in the form set out in the
Fourth Schedule (Notice of Drawdown).
"Nova TV" means _eska Nezavisla Televizni Spole_nost, spol. s.r.o., a limited
liability company
10
established under the laws of the Czech Republic.
"Nova TV Licence" means the television broadcast licence issued by the Council
of the Czech Republic for Radio and Television Broadcasting to CET 21 on 9
February 1993 pursuant to which CET 21 is broadcasting.
"Obligors" means the Borrower and the Guarantors and any other person which
provides security or a guarantee at any time in respect of the obligations of
any other Obligor under any of the Facility Documents (and "Obligor" means any
of them).
"Original Financial Statements" means:
(i) in the case of CME Ltd. and CME B.V., its audited consolidated
financial statements for its financial year ended 31 December
1997;
(ii) in the case of Nova TV, its audited unconsolidated financial
statements for its financial year ended 31 December 1997; and
(iii) in the case of the Borrower and CME Czech II, its management
statements for the period ended 30 September, 1998.
"Partnership Agreement" means the Memorandum of Association and Investment
Agreement, dated 4 May 1993, originally among CME B.V., _eska Spo_itelna a.s.
and CET 21 and now among the Borrower and CET 21, as amended on 1 June 1993, 28
July 1994, 8 December 1994, 15 March 1996 15 March 1996, 17 July 1996, 14
November 1996, 17 December 1996, 3 February 1997, 24 April 1997, 21 May 1997
and 9 December 1997.
"Payment Instruction" means the payment instruction given pursuant to Clause
14.23 (Payment Instruction).
"Permitted Encumbrance" means in respect of any revenues or assets (other than
shares issued by CME N.V., 79% of the voting and economic interest in Nova TV,
all or any rights, title, benefit or interest of Nova TV in or to the Nova TV
Licence or the Service Agreement and all or any assets or revenues which are
expressed to be the subject of any encumbrance created pursuant to any of the
Facility Documents):
(i) any encumbrance arising by operation of law in the ordinary
course of business and securing amounts not more than 90 days
overdue;
(ii) any banker's right of set-off arising by operation of law in
the ordinary course of business or pursuant to the general
terms and conditions applicable to banking mandates or
deposit confirmations of bankers;
(iii) any encumbrance created by Nova TV over all or any of its
assets or revenues (which, for the avoidance of doubt, shall
exclude the Nova TV Licence and the Service Agreement);
11
(iv) any encumbrance arising out of title retention provisions in
a supplier's standard conditions of supply of goods acquired
by any Relevant Member of the Group in the ordinary course of
business;
(v) any encumbrance over property acquired by a Relevant Member
of the Group which already existed at the date of acquisition
of such property and was not created in contemplation of such
acquisition provided that the encumbrance is not extended nor
the amount secured thereby increased after the date of such
acquisition;
(vi) any encumbrance over the whole or any part of the assets of
any subsidiary of any Relevant Member of the Group acquired
after the date of this Agreement which was in existence prior
to the time that subsidiary became a subsidiary of such
Relevant Member of the Group and was not created in
contemplation of that acquisition provided that the
encumbrance is not extended nor the amount secured thereby
increased after the date of the acquisition; and
(vii) any encumbrance over any asset to the extent that the
aggregate principal amount secured by all such encumbrances
does not at any time exceed $10,000,000 or such greater
amount as the Facility Agent may agree from time to time.
"Potential Event" means any event that would constitute an Event of Default or
a Review Event but for the fact that notice is required to be given or time is
required to elapse or both.
"Programming Services Agreement" means the programme and film acquisition
support agreement dated 27 June 1996 and made between CME Programming Services
and Nova TV.
"Programming Fees" means any programming fees payable by Nova TV pursuant to
the Programming Services Agreement or any replacement thereof.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding hereunder, the proportion
borne by its Commitment to the Total Commitments (or, if the
Total Commitments are then zero, by its Commitment to the
Total Commitments immediately prior to their reduction to
zero); or
(b) whilst at least one Advance is outstanding hereunder, the
proportion borne by its share of the Loan to the Loan.
"Quotation Date" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in the London Interbank Market for deposits in dollars for
delivery on the first day of that period Provided that, if, for any such
period, quotations would ordinarily be given on more than one date, the
12
Quotation Date for that period shall be the last of those dates.
"Reduction Dates" means each of the dates specified in Clause 6.2 (Reduction).
"Reference Banks" means the principal London offices of ING Bank N.V., National
Westminster Bank PLC and Citibank N.A. or such other bank or banks as may from
time to time be appointed by the Facility Agent after consultation with CME
Ltd.
"Relevant Jurisdiction" means, in relation to:
(i) CME Ltd., Bermuda;
(ii) CME N.V., the Netherlands Antilles;
(iii) CME B.V., CME Czech II and the Borrower, The Netherlands;
(iv) Nova TV, the Czech Republic; and
(v) any other Obligor, its jurisdiction of its incorporation or
establishment.
"Relevant Member of the Group" means the Borrower, each of the Guarantors and
Nova TV.
"Relevant Payment" means any dividends distributable by Nova TV to any member
of the Group or any payments in respect of any agreement relating to the
provision of management services, network access or programming services by any
member of the Group to Nova TV or relating to the distribution of income or
profits to any member of the Group by Nova TV.
"Repayment Date" means, in relation to any Advance, the last day of the Term
thereof.
"Restricted Dividend" means any dividend declared or paid by Nova TV out of
income or profits derived from any of its financial years ending after 31
December 1998.
"Restricted Fee Payment" means any Fee Payment payable by Nova TV in relation
to income or profits derived from any of its financial years ending after 31
December 1998.
"Restricted Payment" means:
(a) any dividend or other distribution on any share capital of a
person (except dividends payable solely in share capital of
such person); or
(b) any payment on account of the purchase, redemption, retirement
or acquisition of:
(i) any share capital of such person; or
(ii) any option, warrant or other right to acquire share
capital of such
13
person (except any payment made therefor in share
capital of such person).
"Review Event" means any circumstances described in Clause 15.25 (i)-(vii)
(Review Events).
"Security Agency Agreement" means the security agency agreement of even date
herewith between the Obligors as at the date hereof, the Arranger, the Agents
and the Banks.
"Security Documents" means:
(i) the Borrower's Pledge of Bank Accounts;
(ii) CME Ltd.'s Pledge of Intercompany Loans;
(iii) the Borrower's Pledge of Intercompany Loans;
(iv) CME B.V.'s Pledge of Receivables and Intercompany Loans;
(v) the Agreement on Pledge of Dividends of Nova TV;
(vi) CME Programming Services' Pledge of Receivables;
(vii) CME Development Corporation's Pledge of Receivables;
(viii) the Borrower Pledge of Shares;
(ix) the Security Agency Agreement,
and each other agreement, document or instrument entered into from time to time
by any member of the Group in favour of the Security Agent and/or the Banks or
designated as a Security Document by the Facility Agent and the Borrower or
such member of the Group provided that such agreement, document or instrument
secures, inter alia, the obligations of the Borrower hereunder and/or under any
other Facility Document and has not been expressly released by the Security
Agent and/or the Banks.
"Service Agreement" means the agreement on cooperation in ensuring service for
television broadcasting dated 21 May 1997 and a supplement thereto of even date
therewith and made between Nova TV and CET 21.
"Studio 1+1" means the group of companies comprised of the following:
(i) Broadcasting Company "Studio 1+1", a limited liability
company incorporated under the laws of the Ukraine;
(ii) Limited liability company Prioritet Ltd., a limited liability
company
14
incorporated under the laws of the Ukraine;
(iii) Enterprise Intermedia, a legal entity incorporated in the
Ukraine;
(iv) Innova Film GmbH, a limited liability company incorporated
under the laws of the Federal Republic of Germany;
(v) International Media Services Ltd., a limited liability
company incorporated under the laws of Bermuda;
(vi) CME Ukraine Holding GmbH, a limited liability company
incorporated under the laws of Austria;
(vii) Ukraine Advertising Holding B.V., a limited liability company
incorporated under the laws of The Netherlands; and
(viii) CME Ukraine B.V., a limited liability company incorporated
under the laws of the Ukraine.
"Term" means, save as otherwise provided herein, in relation to any Advance,
the period for which such Advance is borrowed as specified in the Notice of
Drawdown relating thereto.
"Total Commitments" means the aggregate at the relevant time of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form set out in
the Second Schedule (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations
hereunder as contemplated in Clause 25.3 (Assignments and
Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Facility Agent as is contemplated in Clause 25.5 (Transfers
by Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date for
the making of the transfer as specified in the schedule to such Transfer
Certificate.
"Transferee" means a bank to which a Bank seeks to transfer all or part of such
Bank's rights, benefits and obligations hereunder.
"TVN" means Federacja Sp. zo.o..
"TV3" means Budapesti Kommunikacios Rt.
"Year 2000 Compliant" means, in relation to any Computer System, that any
reference to or
15
use of a date before, on or after 31 December 1999 in the operation of that
Computer System will not have a material adverse effect on the use of that
Computer System. .
1.2 Interpretation Any reference in this Agreement to:
an "Agent" or any "Bank" shall be construed so as to include its and any
subsequent successors, Transferees and assigns in accordance with their
respective interests;
"authorised officer or officers" means the chief financial officer or any other
two authorised officers;
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks generally are open for business in
Amsterdam, London and New York City;
a "disposal" shall include any sale, lease, assignment or transfer and
"disposed of" shall be construed accordingly;
an "encumbrance" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof or any
agreement to give any security interest);
the "equivalent" on any given date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a reference
to the amount of the first currency which could be purchased with the amount of
the second currency at the spot rate of exchange quoted by the Facility Agent
at or about 9.15 a.m. on such date for the purchase of the first currency with
the second currency or, if no such spot rate of exchange is quoted by the
Facility Agent at or about such time on such date, the spot rate of exchange
quoted by the Facility Agent at or about 9:15 a.m.
on the immediately preceding business day;
"financial indebtedness" means, of any person, at any date, without duplication:
(a) all obligations of such person for the payment of borrowed
money;
(b) all reimbursement obligations of such person related to
letters of credit or acceptance credits, and all such
obligations of such person evidenced by bonds, debentures,
notes or other similar instruments;
(c) all obligations of such person to pay the deferred purchase
price of property or services (other than normal trade credit
which is not more than 90 days overdue);
(d) all obligations of such person as lessee which are
capitalised in accordance with generally accepted accounting
principles;
(e) all financial indebtedness of others secured by an
encumbrance on any asset of such person, whether or not such
financial indebtedness is assumed by such
16
person;
(f) all financial indebtedness of others Guaranteed by such
person; and
(g) money owing in respect of any interest rate swap or
cross-currency or forward sale or purchase contract of
similar effect to any thereof entered into by that person;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "Material Adverse Change" shall be construed as a material adverse change in
the business or financial condition of the Borrower or any Relevant Member of
the Group which affects the Borrower's or such Relevant Member of the Group's
ability to perform or comply with all or any of its material obligations (which
shall include, for the avoidance of doubt, all payment obligations) under any
Facility Document. Without prejudice to the above, a "Material Adverse Change"
shall be deemed to occur if Consolidated Broadcast Cash Flow of CME B.V. or CME
Ltd. is for any twelve calendar month period:
(i) ending on 31 December 1998 less than $12,000,000 (or its
equivalent in any other currency); or
(ii) ending on the last day of any financial quarter of CME Ltd,
or CME B.V., as the case may be, ending after 31 December
1998, less than $15,000,000 (or its equivalent in any other
currency)
Provided that:
(a) for the twelve calendar month period ending 31 December 1998
Studio 1+1 shall be excluded from Consolidated Broadcast Cash
Flow of CME B.V. and CME Ltd.; and
(b) for each twelve month period ending on or prior to the end
ofthe third financial quarter in 1999 (in the case of TVN) or
2000 (in the case of TV3), TVN and/or TV3 (as the case may
be) shall be excluded from Consolidated Broadcast Cash Flow
of CME B.V. and CME Ltd.
a "month" is a reference to a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next succeeding calendar
month save that, where any such period would otherwise end on a day which is
not a business day, it shall end on the next succeeding business day, unless
that day falls in the calendar month succeeding that in which it would
otherwise have ended, in which case it shall end on the immediately preceding
business
17
day Provided that, if a period starts on the last business day in a calendar
month or if there is no numerically corresponding day in the month in which
that period ends, that period shall end on the last business day in that later
month (and references to "months" shall be construed accordingly);
any amount being "outstanding" in relation to any person shall include any
amount constituting any contingent liability of such person as well as any
actual liability, whether present or future and whether or not the relevant
amount has been advanced to or on behalf of such person;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more
of the foregoing;
"relevant indebtedness" shall have the meaning ascribed to it in Clause 15.6
(Cross Default);
"relevant party" shall be construed in accordance with Clause 13.1 (Financial
Condition of the Group).
a "subsidiary":
(i) means, in relation to any Relevant Member of the Group, each
person which is or is required to be consolidated with such
Relevant Member of the Group for the purposes of preparing
consolidated financial statements in accordance with GAAP;
and
(ii) of a company or corporation other than a Relevant Member of
the Group shall be construed as a reference to any company or
corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be
treated as being controlled by another if that other company
or corporation is able to direct its affairs and/or to
control the composition of its board of directors or
equivalent body;
"tax" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same);
18
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
the "winding-up", "dissolution" or "administration" of a company or corporation
shall be construed so as to include any equivalent or analogous proceedings
under the law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or corporation carries
on business.
1.3 Currency Symbols "$" and "dollars" denote lawful currency of the United
States of America, "CZK" and "Czech Crowns" denote the lawful currency of the
Czech Republic and "DEM" denotes lawful currency of the Federal Republic of
Germany.
1.4 Amendments; times Save where the contrary is indicated, any reference in
this Agreement to:
(i) this Agreement or any other agreement or document (other than
the Basle Paper) shall be construed as a reference to this
Agreement or, as the case may be, such other agreement or
document as the same may have been, or may from time to time
be, amended, varied, novated or supplemented;
(ii) a statute shall be construed as a reference to such statute
as the same may have been, or may from time to time be,
amended or re-enacted; and
(iii) a time of day shall be construed as a reference to London time.
1.5 Headings Clause, Part and Schedule headings are for ease of reference only.
1.6 Singular and Plural In this Agreement, words and expressions importing the
singular shall, where the context permits or requires, include the plural and
vice versa.
19
PART 2
THE FACILITY
2. The Facility
2.1 Grant of the Facility The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrower, upon the terms and
subject to the conditions hereof, a dollar revolving loan facility in a maximum
aggregate principal amount of $15,000,000.
2.2 Purpose and Application The Facility is intended to finance and refinance
the making of loans to CME B.V. for the funding of investments and capital
expenditures, general working capital and operating expenditures associated
with the Group's operations. Accordingly, the Borrower shall apply all amounts
raised by it hereunder in or towards satisfaction of such purposes and neither
the Agents, the Arranger and the Banks nor any of them shall be obliged to
concern themselves with such application.
2.3 Condition Precedent Documents Save as the Banks may otherwise agree, the
first Notice of Drawdown may only be delivered by the Borrower hereunder if the
Facility Agent has confirmed to the Borrower that it has received all of the
documents listed in the Third Schedule (Conditions Precedent) and that each is,
in form and substance, satisfactory to the Facility Agent. The Facility Agent
will promptly give notice of such satisfaction to the Borrower and the Banks.
2.4 Banks' Obligations Several The obligations of each Bank hereunder are
several and the failure by a Bank to perform its obligations hereunder shall
not affect the obligations of any of the Obligors towards any party hereto nor
shall any other party be liable for the failure by such Bank to perform its
obligations hereunder.
2.5 Obligor's Obligations With a view to ensuring the validity and
enforceability of the Agreement on Pledge of Dividends of Nova TV the present
and future, actual and contingent obligations of each of the Borrower and the
Guarantors under any or all of the Facility Documents and any and all other
documents or agreements entered into in connection therewith to any of the
Arranger, the Agents and the Banks shall be owed and due to (i) the Arranger,
such Agent or such Bank and (ii) the Security Agent jointly, so that any one or
more of the Arranger, such Agent or such Bank (unless any provision of any
Facility Document contemplates that the Security Agent shall act on behalf of
all of the Banks or an Instructing Group), as the case may be, or the Security
Agent may exercise the rights and remedies of the Arranger, such Agent or such
Bank Provided that nothing herein shall restrict the application of Clause 21
(Sharing) or Clause 3 (Application of Proceeds) of the Security Agency
Agreement.
20
3. Utilisation of the Facility
3.1 Drawdown Conditions An Advance will be made by the Banks to the Borrower
if:
(a) not more than ten business days before and not later than
9.00 a.m. on the third business day before the proposed date
for the making of such Advance, the Facility Agent has
received from the Borrower a Notice of Drawdown therefor,
receipt of which shall oblige the Borrower to borrow the
amount therein requested on the date therein stated upon the
terms and subject to the conditions contained herein;
(b) the proposed date for the making of such Advance is a
business day falling one month or more before the Final
Maturity Date;
(c) the proposed amount of such Advance is (i) an amount of not
less than $2,500,000 and an integral multiple of $500,000
which is less than the amount of the Available Facility or
(ii) equal to the amount of the Available Facility;
(d) the proposed Term of such Advance is a period of one, three,
six or twelve months ending on or before the Final Maturity
Date Provided that if the Borrower fails to give notice of
its selection of the length of any Term the length of such
term shall be one month;
(e) neither of the events mentioned in Clause 5 (Market
Disruption and Alternative Interest Rates) shall have
occurred; and
(f) no Event of Default, Review Event or Potential Event has
occurred which is continuing unwaived and the
representations set out in Clause 11 (Representations)
which are to be repeated under Clause 11.27 (Repetition of
Representations) are true on and as of the proposed date
for the making of such Advance provided that this Clause
3.1(f) shall not apply to any Advance which is in the same
or a lesser amount as an existing Advance or Advances
falling due for repayment on the proposed date for the
making of such Advance and such Advance is to be applied in
refinancing such existing Advance or Advances (but without
prejudice to the rights of the Facility Agent and the Banks
under Clauses 15.22 (Acceleration and Cancellation), 15.23
(Advances Due on Demand) and 15.25 (Review Events)).
3.2 Each Bank's Participation Each Bank will participate through its Facility
Office in each Advance made pursuant to Clause 3.1 (Drawdown Conditions) in the
proportion borne by its Available Commitment to the Available Facility
immediately prior to the making of that Advance.
3.3 Reduction of Available Commitment If a Bank's Commitment is reduced in
accordance with the terms hereof after the Facility Agent has received the
Notice of Drawdown for an Advance, then the amount of that Advance shall be
reduced accordingly.
21
PART 3
INTEREST
4. Payment and Calculation of Interest
4.1 Payment of Interest On the Repayment Date relating to each Advance and if
such Advance has a Term which exceeds six months, at the end of the six month
period commencing on the date of making such Advance the Borrower shall pay
accrued interest on that Advance.
4.2 Calculation of Interest The rate of interest applicable to an Advance from
time to time during its Term shall be the rate per annum which is the sum of
the Applicable Margin at such time and LIBOR on the Quotation Date therefor.
5. Market Disruption and Alternative Interest Rates If, in relation to any
Advance:
(a) the Facility Agent determines that at or about 11.00 a.m. on
the Quotation Date for the Term in respect of such Advance
the Telerate service is not available and none or only one of
the Reference Banks was offering to prime banks in the London
Interbank Market deposits in dollars for the proposed
duration of such Term; or
(b) before 3.00 p.m. on the Quotation Date for such Term the
Facility Agent has been notified by a Bank or each of a group
of Banks to whom in aggregate fifty per cent. or more of such
Advance if made would be owed that the rate at which such
deposits were being so offered does not accurately reflect
the cost to it of obtaining such deposits,
then, notwithstanding the provisions of Clause 4 (Payment and Calculation of
Interest):
(i) the Facility Agent shall notify the other parties
hereto of such event;
(ii) such Advance shall not be made; and
(iii) if the Facility Agent or the Borrower so requires,
within five days of such notification the Facility
Agent and the Borrower shall enter into
negotiations with a view to agreeing a substitute
basis for determining the rates of interest which
may be applicable to Advances in the future and any
such substitute basis that is agreed shall take
effect in accordance with its terms and be binding
on each party hereto Provided that the Facility
Agent may not agree any such substitute basis
without the prior consent of each Bank.
22
PART 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. Repayment
6.1 Repayment The Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto.
6.2 Reduction The Total Commitments shall, on each of the dates set out below,
be reduced to the amount (subject to any further reduction to such amount in
accordance with Clause 6.6 (Restriction on Relevant Payments)) set opposite
such date (to the extent not already reduced in accordance herewith):
Reduction Date Reduced Total Commitments $
30 June 2000 11,250,000
30 November 2000 7,500,000
30 June 2001 3,750,000
30 November 2001 0
Each reduction of the Total Commitments shall reduce the Commitment of each
Bank rateably.
6.3 Repayments to allow Reductions The Borrower shall, on each of the Reduction
Dates specified in Clause 6.2 (Reduction), repay (subject always to Clause 17.4
(Broken Periods)) an amount of the Loan which shall ensure that the amount of
the Loan when aggregated with the amount of the Available Facility as at the
end of such Reduction Date shall be equal to or less than the amount set
opposite such Reduction Date in Clause 6.2 (Reduction).
6.4 Notice of Relevant Payments Whenever Nova TV declares a dividend or becomes
obliged to make a Fee Payment, CME B.V. shall, within five business days,
notify the Facility Agent of the amount and the date(s) for payment thereof and
provide the Facility Agent with evidence of such amount and date(s) in the form
of:
(i) in the case of a dividend, a copy of the annual audited
financial statements or the minutes of a meeting of the
shareholders of Nova TV certified, in each case, as true by a
duly authorised officer or officers of CME B.V.; or
(ii) in the case of a Fee Payment, a certificate of a duly
authorised officer or officers of CME B.V.
6.5 Application of Relevant Payments If Nova TV:
(i) pays a Restricted Dividend and the credit balance on the
Dollar Collection Account is less than the amount by which
the Total Commitments are then scheduled to be reduced on the
then next succeeding Reduction Date; or
23
(ii) makes a Restricted Fee Payment and the aggregate of:
(a) the amount of all Restricted Dividends at that time
yet to be paid by Nova TV prior to the next
succeeding Reduction Date (such amount to be
calculated solely by reference to the evidence
delivered pursuant to Clause 6.4); and
(b) the credit balance on the Dollar Collection Account
is less than the amount by which the Total Commitments are
then scheduled to be reduced on the then next succeeding
Reduction Date
then CME B.V. shall promptly ensure that a dollar amount equal to the amount of
such Restricted Dividend or Fee Payment is credited to the Dollar Collection
Account.
CME B.V. may comply with its obligations under this Clause by:
(1) ensuring that the Borrower issues an instruction to the
Facility Agent to convert the local currency amount of the
relevant Restricted Dividend or Fee Payment into dollars for
credit to the Dollar Collection Account;
(2) direct payment by CME B.V. of dollars to the Dollar Collection
Account; or
(3) by a combination of the foregoing.
If CME B.V. has not complied with such obligations within five business days of
notice from the Facility Agent requiring the same, the Facility Agent shall be
irrevocably entitled (and the Borrower hereby authorises the Facility Agent) to
convert any amounts standing to the credit of the Local Currency Collection
Account or the Guilder Account into dollars at the Facility Agent's relevant
spot rate of exchange and to credit the same to the Dollar Collection Account.
6.6 Restriction on Relevant Payments If Nova TV pays a Restricted Dividend
during a December/June period which is not calculated by reference to the
income or profits earned by Nova TV during the financial year preceding that in
which such December/June period begins and:
(i) (a) the amount of such Restricted Dividend, when aggregated
with (b) the credit balance on the Dollar Collection Account,
exceeds (c) the amount by which the Total Commitments are to
be reduced on the 30 June Reduction Date on which such
December/June period ends (the amount of (a) plus (b) less
(c) hereinafter called an "Excess Dividend Amount"); and
(ii) the amount by which the Total Commitments are then scheduled
to be reduced on the next 30 November Reduction Date exceeds
the amount of Restricted Dividend or Fee Payments at that
time yet to be paid in the July/November period ending on
such 30 November Reduction Date, calculated solely by
24
reference to the evidence delivered pursuant to Clause 6.4
(such excess being hereinafter referred to as the "Relevant
Payment Shortfall")
then the amount to which the Total Commitments are scheduled to be reduced on
such 30 June Reduction Date shall be further reduced by the lesser of:
(1) such Excess Dividend Amount; and
(2) such Relevant Payment Shortfall
whereupon the provisions of Clause 6.5 shall apply to such Restricted Dividend.
6.7 Withdrawals from Accounts Withdrawals may not be made from the Dollar
Collection Account, the Local Currency Collection Account or the Guilder
Account by the Borrower if an Event of Default or Review Event has occurred
which is continuing unwaived (unless such amounts are applied in immediate
irreversible prepayment of the Loan) or if CME B.V. is under an obligation to
credit an amount to the Dollar Collection Account under Clause 6.5. Withdrawals
from the Dollar Collection Account may otherwise be made only if:
(i) after such withdrawal, the credit balance on the Dollar
Collection Account would not be less than the amount by which
the Total Commitments are then scheduled to be reduced on the
then next succeeding Reduction Date; or
(ii) the Total Commitments are simultaneously reduced by an amount
equal to the amount of such withdrawal.
In the case of (ii) above the proceeds of the relevant withdrawal must be
applied in immediate prepayment of the Loan to the extent necessary to ensure
that the amount of the Loan is not more than the amount of the Total
Commitments following such reduction. Nothing in this Clause 6 shall prevent
the withdrawal of any amounts standing to the credit of any account pursuant to
any Security Document for application in discharge of the Loan.
6.8 Calculation of Amounts of Relevant Payments The amount of any Restricted
Dividend or Fee Payment shall be calculated net of withholding on account of
tax and, if denominated in any currency other than dollars:
(i) at the Facility Agent's spot rate for the purchase of dollars
with such currency at 11.00 a.m. on (a) the day in question
or (b) if such Restricted Dividend or Fee Payment is one
referred to in Clauses 6.5 (other than Clause 6.5(ii)(a)) or
6.6(i), on the second business day prior to the date of
payment of such Restricted Dividend or Fee Payment; or
(ii) if CME B.V. has entered into any forward foreign exchange
contract in relation to such Restricted Dividend or Fee
Payment for the purchase of dollars with an amount equal to
the amount of such Restricted Dividend or Fee Payment, in
accordance with such contract.
25
6.9 No Other Repayments The Borrower shall not repay all or any part of any
Advance outstanding hereunder except at the times and in the manner expressly
provided herein but shall, subject to the terms and conditions hereof, be
entitled to reborrow any amount repaid.
6.10 Netting If on any date:
(i) a Bank is obliged to participate in the making of an Advance;
and
(ii) a payment is due to be made to that Bank pursuant to Clause
6.1 (Repayment) by the Borrower,
then (without prejudice, for the avoidance of doubt, to the obligation of the
Borrower to repay such Advance in full on its Repayment Date, subject to the
provisions of this Agreement) the Facility Agent shall set off the amount
payable by such Bank in respect of such Advance and the amount payable by the
Borrower and only the net amount (if any) shall be payable by such Bank or, as
the case may be, the Borrower (and the Facility Agent shall promptly advise the
Borrower and such Bank of the net amount (if any) payable by such Bank to the
Borrower or by the Borrower to such Bank). Such Bank or, as the case may be,
the Borrower shall make such net amount (if any) available to the Facility
Agent in accordance with the provisions of this Agreement on the relevant date.
7. Prepayment and Cancellation
7.1 Prepayment The Borrower may, at any time, if it has given to the Facility
Agent not less than five business days' prior notice to that effect, prepay the
whole or any part of any Advance (being a minimum amount of $2,500,000 and an
integral multiple of $500,000) on any business day subject to the provisions of
Clause 17.4 (Broken Periods) and provided that the Borrower shall on the date
of prepayment of any Advance (or part thereof) pursuant to this Clause 7.1
(Prepayment) pay all interest accrued thereon up to the date of repayment
thereof.
7.2 Cancellation The Borrower may, at any time, by giving to the Facility Agent
not less than five business days' prior notice to that effect, cancel the whole
or any part (being a minimum amount of $2,500,000 and an integral multiple of
$500,000) of the Total Commitments; any such cancellation shall be applied in
reduction of the amount (until such amount is zero) to which the Total
Commitments are to be reduced pursuant to Clause 6.2 (Reduction) on any
Reduction Date by applying such amount in reduction of the amount by which
Total Commitments are to be reduced on each Reduction Date in chronological
order and shall reduce the Commitment of each Bank rateably.
7.3 Notice of Cancellation Any notice of prepayment or cancellation given by
the Borrower for the purposes of Clause 7.1 (Prepayment) or 7.2 (Cancellation)
shall be irrevocable and shall specify the date upon which such prepayment or
cancellation is to be made and the amount of such prepayment or cancellation
and, in the case of a notice of prepayment, shall oblige the Borrower to make
such prepayment on such date.
26
7.4 Cancellation of a Bank's Commitment If any Bank claims indemnification from
the Borrower under Clause 8.2 (Tax Indemnity) or Clause 10.1 (Increased Costs),
the Borrower may, if no Potential Event, Event of Default or Review Event has
occurred which is continuing unwaived, within thirty days thereafter and by not
less than ten business days' prior notice to the Facility Agent (which notice
shall be irrevocable), cancel such Bank's Commitment whereupon such Bank shall
cease to be obliged to participate in further Advances and its Commitment shall
be reduced to zero.
27
PART 5
RISK ALLOCATION
8. Taxes
8.1 Tax Gross-up All payments to be made by the Borrower or any Guarantor to
the Arranger, an Agent or any Bank under any Facility Document shall be made
free and clear of and without deduction for or on account of tax unless the
Borrower or such Guarantor is required to make such a payment subject to the
deduction or withholding of tax, in which case the sum payable by the Borrower
or such Guarantor in respect of which such deduction or withholding is required
to be made shall be increased to the extent necessary to ensure that, after the
making of the required deduction or withholding, such person receives and
retains (free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be made.
8.2 Tax Indemnity Without prejudice to the provisions of Clause 8.1 (Tax
Gross-up), if any party to this Agreement (other than the Borrower or any
Guarantor) or an Agent on its behalf is required to make any payment on account
of tax (not being a tax imposed on and calculated by reference to the net
income paid to and received by such party's Facility Office by the jurisdiction
in which such party is incorporated or in which such party's Facility Office is
located) on or in relation to any sum received or receivable under any Facility
Document by such person or an Agent on its behalf (including any sum received
or receivable under this Clause 8) or any liability in respect of any such
payment is asserted, imposed, levied or assessed against such party or an Agent
on its behalf, the Borrower or the Guarantor from whom such sum was received or
receivable shall, upon demand of the Facility Agent, promptly indemnify such
party against such payment or liability, together with any interest, penalties,
costs and expenses payable or incurred in connection therewith.
8.3 Filings Each Bank and Agent shall cooperate with the Borrower in respect of
any application to the relevant revenue authorities by the completion and
execution of such certificates, claim forms or other documentation as such Bank
or Agent is reasonably able to complete and execute without incurring any
liability on its part and as the Borrower may reasonably request, to enable the
Borrower to obtain authorisation from the relevant revenue authorities to make
interest payments in full to such Bank or Agent without deduction or
withholding of tax. No additional amount shall be payable pursuant to Clause
8.1 (Tax Gross-up) or Clause 8.2 (Tax Indemnity) in respect of any deduction or
withholding for or on account of tax which would not have been required to be
deducted or withheld or which would not have arisen if the person to whom such
a payment was made or is payable had complied with the obligations expressed to
be assumed by it under this Clause 8.3 (Filings) if the Borrower has requested
the relevant Bank or Agent to complete and execute the relevant certificates,
forms or other documents, provided that the Borrower shall continue to be
liable to pay any amount or additional amount pursuant to Clause 8.1 (Tax Gross
Up) or Clause 8.2 (Tax Indemnity) which would not have been payable if the
relevant certificates, forms or other documents had been completed and
executed, notwithstanding that such liability arises after the Borrower has
28
requested such completion and execution if the relevant Bank or Agent is taking
all reasonable steps open to it to effect such completion and execution in a
reasonably expeditious manner.
8.4 Tax credits If any Bank receives the benefit of any tax credit, refund or
allowance resulting from a payment which includes an additional amount paid by
the Borrower under Clause 8 (Taxes), it shall, to the extent that it can do so
without prejudice to the retention of the relevant benefit, pay to the Borrower
such part of that benefit as the Bank considers to be attributable to the
additional amount paid by the Borrower under Clause 8 (Taxes) which will leave
the Borrower in no less favourable a position that it would have been in if no
additional amount had been required to be paid provided that:
(a) the Bank shall be the sole judge of the amount of any such
benefit and of the date on which it is received;
(b) the Bank shall have a discretion as to the order and manner
in which it employs or claims tax credit, refunds and
allowances available to it and, in particular, shall be
entitled to arrange its tax affairs in whatever manner it
thinks fit; and
(c) the Bank shall not be obliged to disclose to the Borrower any
information regarding its tax affairs or tax computations.
8.5 Claims by Banks A Bank intending to make a claim pursuant to Clause 8.2
(Tax Indemnity) shall notify the Facility Agent of the event by reason of which
it is entitled to do so, whereupon the Facility Agent shall notify the Borrower
thereof Provided that nothing herein shall require such Bank to disclose any
confidential information relating to the organisation of its affairs.
9. Tax Receipts
9.1 Notification of Requirement to Deduct Tax If, at any time, the Borrower or
a Guarantor is required by law to make any deduction or withholding from any
sum payable by it under any Facility Document (or if thereafter there is any
change in the rates at which or the manner in which such deductions or
withholdings are calculated), the Borrower or such Guarantor shall promptly
notify the Facility Agent.
9.2 Evidence of Payment of Tax If the Borrower or a Guarantor makes any payment
under any Facility Document in respect of which it is required to make any
deduction or withholding, it shall pay the full amount required to be deducted
or withheld to the relevant taxation or other authority within the time allowed
for such payment under applicable law and shall deliver to the Facility Agent
for each Bank, within thirty days after it has made such payment to the
applicable authority (or, if later, within 10 business days of receipt), an
original receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to be
deducted or withheld in respect of that Bank's share of such payment.
29
10. Changes in Circumstances
10.1 Increased Costs If, by reason of (i) any change in law or in its
interpretation or administration and/or (ii) compliance with any Capital
Adequacy Requirement or any other request from or requirement of any central
bank or other fiscal, monetary or other authority:
(a) a Bank or any holding company of such Bank is unable to
obtain the rate of return on its capital which it would have
been able to obtain but for such Bank's entering into or
assuming or maintaining a commitment or performing its
obligations (including its obligation to participate in the
making of Advances) under this Agreement;
(b) a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or
maintaining a commitment or performing its obligations
(including its obligation to participate in the making of
Advances) under this Agreement;
(c) there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining all or any of
the loans comprised in a class of loans formed by or
including such Bank's share of the Advances; or
(d) a Bank or any holding company of such Bank becomes liable to
make any payment on account of tax or otherwise (not being a
tax imposed on such Bank or such holding company and
calculated by reference to the net income paid to and
received by such Bank's Facility Office by the jurisdiction
in which such Bank or such holding company is incorporated or
in which such Facility Office is located) on or calculated by
reference to the amount of such Bank's share of the Advances
and/or to any sum received or receivable by it hereunder,
in each case in an amount which such Bank considers material then the Borrower
shall, from time to time on demand of the Facility Agent, promptly pay (without
duplication of amounts otherwise payable pursuant to Clause 8 (Taxes) or any
other provision of this Agreement) to the Facility Agent for the account of
that Bank amounts sufficient to hold harmless and indemnify that Bank or such
Bank's holding company from and against, as the case may be, (1) such reduction
in the rate of return of capital (or such proportion of such reduction as is,
in the reasonable opinion of that Bank, attributable to its obligations
hereunder), (2) such cost, (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its
participating in the funding or maintaining of Advances) or (4) such liability,
each as referred to in paragraphs (a) to (d) above.
10.2 Exceptions Clause 10.1 shall not apply to any cost, reduction, increased
cost or liability:
(a) compensated for under Clause 8;
30
(b) attributable to any breach by the relevant Bank (or its
holding company) of any applicable law or any request or
requirement of any central bank or other fiscal, monetary or
other authority; or
(c) relating to tax on a Bank's (or its holding company's) overall
net income.
10.3 Increased Costs Claims A Bank intending to make a claim pursuant to Clause
10.1 (Increased Costs) shall notify the Facility Agent of the event by reason
of which it is entitled to do so, whereupon the Facility Agent shall notify the
Borrower thereof Provided that nothing herein shall require such Bank to
disclose any confidential information relating to the organisation of its
affairs.
10.4 Illegality If, at any time, it is unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its Commitment or its share of the
Advances, then that Bank shall, promptly after becoming aware of the same,
deliver to the Borrower through the Facility Agent a notice to that effect and:
(a) such Bank shall not thereafter be obliged to participate in
the making of any Advances and the amount of its Commitment
shall be immediately reduced to zero; and
(b) if the Facility Agent on behalf of such Bank so requires, the
Borrower shall repay the Bank's share of any outstanding
Advances on the Repayment Date relating thereto (or, if
earlier, the latest date permitted by applicable law)
together with accrued interest thereon and all other amounts
owing to such Bank hereunder.
10.5 Mitigation If circumstances are such that the Borrower is obliged to pay
any additional amounts for the benefit of a Bank pursuant to Clause 8.1 (Tax
Gross-up) or a Bank intends to claim indemnification from the Borrower under
Clause 8.2 (Tax Indemnity) or Clause 10.1 (Increased Costs) such Bank shall,
after consultation with the Facility Agent and the Borrower and to the extent
that it can do so lawfully and without prejudice to its own position, consider
what steps it might reasonably take (including a change in its Facility Office
or the transfer of its rights, benefits and obligations hereunder to another
financial institution acceptable to the Borrower and willing to participate in
the Facility) with a view to mitigating the effect of such circumstances on the
Borrower.
31
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
11. Representations
The Borrower and each of the Guarantors makes the representations and
warranties set out in Clause 11.1 (Status and Due Authorisation of Borrower and
the Guarantors) to Clause 11.25 (Security Documents) (provided that the
representations contained in Clause 11.17 (Ownership of Assets by the Borrower)
shall be made or repeated only in accordance with any Notice of Drawdown and in
accordance with Clause 11.27 (Repetition of Representations)) and the Borrower
and each of the Guarantors acknowledges that the Agents, the Arranger and the
Banks have entered into the Facility Documents in reliance on those
representations and warranties.
11.1 Status and Due Authorisation of the Borrower and the Guarantors It is a
corporation duly organised and (to the extent such concept is recognised) in
good standing under the laws of its Relevant Jurisdiction with power (i) to
enter into each of the Facility Documents, and each Intercompany Loan Agreement
to which it is expressed to be a party, (ii) to own its properties and to carry
on its business as it is now being conducted and (iii) to exercise its rights
and perform its obligations under each such Facility Document and each
Intercompany Loan Agreement to which it is expressed to be a party and all
corporate and other action required to authorise its execution of each such
Facility Document and Intercompany Loan Agreement and its performance of its
obligations thereunder has been duly taken.
11.2 Status and Due Authorisation of Nova TV Nova TV is a limited liability
company duly organised and (to the extent such concept is recognised) in good
standing under the laws of the Czech Republic with power (i) to enter into each
Facility Document to which it is a party and the Service Agreement, (ii) to own
its properties and conduct its business as it is now being conducted and (iii)
to exercise its rights and perform its obligations under each Facility Document
to which it is a party and the Service Agreement and all corporate and other
action required to authorise the owning of its properties and the conduct of
its business as it is now being conducted and its execution of each Facility
Document to which it is a party and the Service Agreement and its performance
of its obligations thereunder has been duly taken.
11.3 Withholding Tax Under the laws of the Czech Republic Nova TV is not
required to make any withholding for tax from any payment it may make to the
Borrower in respect of any dividends.
11.4 Claims Pari Passu The claims of the Agents, the Arranger and the Banks
against each Obligor and Nova TV under each of the Facility Documents and
against CME B.V. or the Borrower in relation to any claim that may arise as a
result of the enforcement of the Borrower's Pledge of Intercompany Loans will
rank at least pari passu with the claims of all the other unsecured and
unsubordinated creditors of such Obligor or Nova TV or CME B.V. under the laws
of the Relevant Jurisdiction of such Obligor or Nova TV or CME B.V. (as the
case may be) save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
32
11.5 Governing Law In any proceedings taken in any Relevant Jurisdiction in
relation to any Facility Document the law expressly chosen by the parties to
such Facility Document, as the governing law of such Facility Document, will be
recognised and enforced.
11.6 Validity and Admissibility in Evidence All acts, conditions and things
required to be done, fulfilled and performed in order (a) to enable each
Relevant Member of the Group lawfully to enter into, exercise its rights under
and perform and comply with the obligations expressed to be assumed by it in
each of the Facility Documents, in the Partnership Agreement, in the Service
Agreement and in each Intercompany Loan Agreement to which it is expressed to
be a party, (b) to ensure that the obligations expressed to be assumed by each
Relevant Member of the Group in each of the Facility Documents, the Partnership
Agreement, the Service Agreement and each Intercompany Loan Agreement are
legal, valid and binding and (c) to make each of the Facility Documents to
which it is a party, the Partnership Agreement, the Service Agreement and each
Intercompany Loan Agreement admissible in evidence in the Relevant Jurisdiction
of the Relevant Member(s) of the Group party to such Facility Document,
Partnership Agreement, Service Agreement or Intercompany Loan Agreement, have
been done, fulfilled and performed.
11.7 No Filing or Stamp Taxes Under the laws of each Relevant Jurisdiction no
filing, recording or enrolment with any court or other authority in such
Relevant Jurisdiction and no stamp, registration or similar tax is required to
be paid on or in relation to any of the Facility Documents, the Partnership
Agreement or the Service Agreement save for any filing, recording, enrolment,
stamp, registration, or other similar tax which has already been made or paid.
11.8 Binding Obligations The obligations expressed to be assumed by each
Relevant Member of the Group in each of the Facility Documents, the Partnership
Agreement, the Service Agreement and each Intercompany Loan Agreement are legal
and valid obligations binding on it in accordance with the terms thereof except
where the same may be limited by applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights generally or
by equitable principles. 11.9 No Winding-up No Relevant Member of the Group has
taken any corporate action nor have any other steps been taken or legal
proceedings been started or (to the best of its knowledge and belief)
threatened (other than any steps or proceedings of a frivolous or vexatious
nature as determined by an independent reputable law firm) against any Relevant
Member of the Group for its winding-up, dissolution, administration or
re-organisation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or of any or all of
its assets or revenues.
11.10 No Event of Default No Event of Default, Review Event or Potential Event
has occurred and is continuing.
11.11 No Material Defaults No Relevant Member of the Group is in breach of or
in default under any term of its constitutive documents, any agreement or
instrument to which it is a party or which is binding on it or any of its
assets or any term of any applicable law, ordinance, rule or regulation or any
order, judgment or decree of any court, arbitrator or governmental authority,
in each case, to an extent or in a manner which would reasonably be expected to
lead to a Material
33
Adverse Change.
11.12 Original Financial Statements The Original Financial Statements of each
Relevant Member of the Group (other than CME N.V.) were prepared in accordance
with GAAP and (in conjunction with the notes thereto) fairly present in
conformity with GAAP the consolidated (or, as the case may be, unconsolidated)
financial condition of such Relevant Member of the Group (and, if applicable,
its subsidiaries) at the date as of which they were prepared and the results of
such Relevant Member of the Group's operations during the financial year or
other period to which they relate then ended.
11.13 No Material Adverse Change Since 31 December 1997, there has been no
Material Adverse Change.
11.14 Ownership of Assets by CME Ltd. Except as permitted by or in accordance
with the Security Documents, CME Ltd. is the absolute sole beneficial owner of
(i) all the outstanding shares of CME N.V., (ii) all of the rights and benefits
relating to CME Ltd.'s Bank Accounts (and the monies held therein) and (iii)
all outstanding Intercompany Loans made by it free (in each case) from
encumbrances and it has not granted (or agreed to grant) any rights of
pre-emption over the shares in CME N.V. or otherwise disposed (or agreed to
dispose) of the whole or any part of such shares, rights, benefits or
Intercompany Loans. Furthermore, CME Ltd.'s only assets are (a) shares in CME
N.V., (b) one share in CME Media Enterprises (UK), (c) shares in a company
incorporated in England (provided that promptly upon CME Ltd. becoming the
owner of such shares it shall contribute the loan of $ 22,497,750 made by it to
CME B.V. and referred to in the Sixth Schedule to such company as share premium
and all such shares except one shall be transferred to CME N.V. who shall
transfer the same to CME B.V.), (d) the monies from time to time standing to
the credit of CME Ltd.'s Bank Accounts, (e) the outstanding Intercompany Loans
secured in accordance with CME Ltd.'s Pledge of Intercompany Loans, (f) any
assets secured in favour of the Security Agent in accordance with Clause 14.6
(Ownership of Assets by CME Ltd.) and (g) the rights relating to each of the
foregoing and assets used solely in managing and administering CME Ltd. or the
aforementioned activities of CME Ltd..
11.15 Activities of CME N.V. CME N.V. is the absolute sole beneficial owner of
(i) all the outstanding shares in CME B.V., (ii) 1% of the outstanding share
capital of CME Medienbeteiligungen GmbH, (iii) cash raised by the issue of
further shares in CME N.V. as permitted hereunder and (iv) all intercompany
loans made by it as permitted hereunder and carries on no business other than
the holding of all the outstanding shares of CME B.V. and 1% of the outstanding
share capital of CME Medienbeteiligungen GmbH (and related management and
administering activities) and owns no assets other than the aforementioned
shares and assets and any assets used solely in managing and administering CME
N.V. or the aforementioned activities of CME N.V..
11.16 Ownership of Assets by CME B.V. and CME Czech II Except pursuant to the
Security Documents, CME B.V. is the absolute, sole beneficial owner of all of
the issued share capital of CME Czech II and CME Czech II is the absolute, sole
beneficial owner of all the issued share capital of the Borrower in each case
free from encumbrances, counterclaim or dispute and
34
neither CME B.V. nor CME Czech II has granted (or agreed to grant) any rights
of pre-emption over or otherwise disposed (or agreed to dispose) of the whole
or any part of such shares.
11.17 Ownership of Assets by the Borrower Except pursuant to the Security
Documents, the Borrower is the absolute, sole beneficial owner of (i) at least
79% of the voting and economic interests in Nova TV and exclusively entitled to
all profit distributions relating to such economic interests, (ii) all of the
rights and benefits relating to each of the bank accounts (and the monies held
therein) secured under the Borrower's Pledge of Bank Accounts and (iii) all
Intercompany Loans made by it, free (in each case) from encumbrances, rights of
counter-claim (in the case of assets other than the bank accounts secured by
the Borrower's Pledge of Bank Accounts and rights relating thereto) or dispute
by any person (other than, in the case of any bank account, the relevant bank
at which such account is held) and:
(a) at least 79% of the voting and economic interests in Nova TV
remain free from any rights of pre-emption granted (or agreed
to be granted) to any person and have not been disposed of
(and are not subject to any agreement for disposal); and
(b) the Borrower has not subordinated or disposed of (or agreed
to subordinate or dispose of) the whole or any part of such
rights, benefits or Intercompany Loans referred to in (ii)
and (iii) above.
The Borrower owns no other assets other than voting and economic interests in
Nova TV, the monies from time to time standing to the credit of the bank
accounts secured under the Borrower's Pledge of Bank Accounts, the Intercompany
Loans secured in accordance with the Borrower's Pledge of Intercompany Loans
and the rights relating to any of the foregoing and assets used solely in
managing and administering the aforementioned activities of the Borrower and
those activities mentioned in Clause 14.7.
11.18 Full Disclosure The factual information contained in the Information
Memorandum (other than sections 8 and 9 of the Information Memorandum dated
August 1997 thereof for which neither the Borrower nor any Guarantor is
accepting responsibility and save as disclosed to the Facility Agent in writing
prior to the date hereof) is at the date hereof (or in the case of the
Information Memorandum prepared in August 1997 and December 1997 were at the
date the same were prepared) accurate in all material respects and all
statements of opinion, projections and forecasts contained therein have been
made in good faith and based on estimates and assumptions which CME Ltd.
considers reasonable as at the date hereof (or in the case of the Information
Memorandum prepared in August 1997 and December 1997 which CME Ltd. considered
reasonable as at the date the same were prepared). Neither the Borrower nor any
Guarantor has omitted to state a material fact necessary to make the
information contained in the Information Memorandum (other than sections 8 and
9 of the Information Memorandum dated August 1997 which neither the Borrower
nor any Guarantor is accepting responsibility) relating to any Relevant Member
of the Group not misleading in any material respect as at the date hereof.
11.19 Encumbrances Save as permitted by Clause 14.9 (Negative Pledge), no
encumbrance
35
exists over all or any of the present or future revenues or assets of any
Relevant Member of the Group.
11.20 No Obligation to Create Security The execution of each of the Facility
Documents and the exercise of the rights and performance of the obligations
thereunder by each party thereto will not result in the existence of nor oblige
any Relevant Member of the Group to create any encumbrance over all or any of
its present or future revenues or assets other than any Permitted Encumbrance.
11.21 Execution of the Facility Documents The execution of each of the Facility
Documents to which it is expressed to be a party and the Service Agreement by
any Relevant Member of Group and its exercise of its rights and performance of
its obligations thereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is
binding upon it or any of its assets;
(b) conflict with its constitutive documents and rules and
regulations or with the Partnership Agreement; or
(c) conflict with any applicable law, ordinance, rule, regulation
or official or judicial order in any material respect.
11.22 Compliance with Law Each Relevant Member of the Group is conducting and
has conducted its business in compliance in all material respects with all
material applicable laws, regulations and authorisations of all relevant
governmental authorities (including without limitation the Securities and
Exchange Commission). Each Relevant Member of the Group has duly obtained all
material consents, licenses, approvals and authorisations from all relevant
governmental authorities and other third persons and has effected all
declarations, filings and registrations with all relevant governmental
authorities and other third persons necessary for the due execution, delivery
and performance by it of each of the Facility Documents, the Partnership
Agreement, the Service Agreement and each Intercompany Loan Agreement to which
it is a party and the continued conduct of its business except for those
relating to future operations and transactions which are expected to be
obtained as a matter of course and those which the failure to obtain would not
reasonably be expected to lead to a Material Adverse Change.
11.23 Exclusivity The Nova TV Licence has been issued to CET 21 exclusively.
Nova TV has the exclusive right to benefit from, use and enjoy the rights
associated with the Nova TV Licence and each of the Nova TV Licence and the
Service Agreement is in full force and effect and no notice of revocation,
cancellation or withdrawal thereof has been given by any relevant person and
neither Nova TV nor CET 21 is in breach of any of its obligations under the
Nova TV Licence or the Service Agreement. The execution of, the exercise of
rights and the performance by any Relevant Member of the Group of its
obligations under any of the Facility Documents will not conflict with, breach
or cause any default under the Nova TV Licence or the Service Agreement.
36
11.24 Litigation, etc. Save as disclosed in the Eighth Schedule:
(i) as at the date hereof, there is no action, suit,
investigation, arbitration or other proceeding pending or, to
the best of the knowledge and belief of the Borrower and each
Guarantor, threatened against (a) any member of the Group
which other than Nova TV, would reasonably be expected to
result in, individually or in conjunction with any other
action, suit, investigation, arbitration or other proceeding,
a Material Adverse Change or (b) Nova TV or CET 21 ; and
(ii) as at any date after the date hereof, there is no action,
suit, investigation, arbitration or other proceeding pending
or, to the best of the knowledge and belief of the Borrower
and each Guarantor, threatened against any member of the
Group or CET 21 which would reasonably be expected to result
in, individually or in conjunction with any other action,
suit, investigation, arbitration or other proceeding, a
Material Adverse Change.
11.25 Security Documents Each of the Security Documents shall, as at the date
of delivery of the first Notice of Drawdown to the Facility Agent hereunder and
at all times when this representation and warranty is repeated thereafter,
create a first ranking, valid, perfected and enforceable security interest in
respect of the revenues and/or assets referred to therein subject, in the case
of the Agreement on Pledge of Dividends of Nova TV and any dividends which have
not been declared by Nova TV, to the due execution by the Borrower of a further
pledge of dividends pursuant to and in accordance with Clause 3.2 of the
Agreement on Pledge of Dividends of Nova TV (subject to any limitations arising
from administration, bankruptcy, insolvency, liquidation, reorganisation and
similar laws generally affecting the rights of creditors).
11.26 Repetition of Representations Each of the representations and warranties
contained in Clauses 11.1 (Status and Due Authorisation of Borrower) to 11.25
(Security Documents) (other than 11.3 (Withholding Tax), 11.13 (No Material
Adverse Change) and 11.18 (Full Disclosure)) shall be repeated on the date of
the making of any Advance to which Clause 3.1 (f) (Drawdown Conditions) applies
by reference to the facts and circumstances then existing and as if references
therein to "Original Financial Statements" in relation to any Relevant Member
of the Group was a reference to the most recent set of financial statements
delivered in relation to such Relevant Member of the Group pursuant to Clauses
12.1 (Annual Statements (CME Ltd. and CME B.V.)) and 12.2 (Annual Statements
(others)).
12. Financial Information
12.1 Annual Statements (CME Ltd. and CME B.V.) CME Ltd. shall as soon
as the same become available, but in any event within 100 days after the end of
each of its financial years, deliver to the Facility Agent in sufficient copies
for the Banks the consolidated financial statements of CME Ltd. and CME B.V.
for such financial year.
37
12.2 Annual Statements (others) CME Ltd. shall, as soon as the same become
available, but in any event within 100 days of the end of each financial year
of each other Relevant Member of the Group (other than CME N.V.), deliver to
the Facility Agent in sufficient copies for the Banks the unconsolidated or, if
such Relevant Member of the Group (other than the Borrower and CME Czech II)
has any subsidiary, the consolidated financial statements of each such other
Relevant Member of the Group for such financial year.
12.3 Quarterly Statements (CME Ltd. and CME B.V.) CME Ltd. shall as soon as the
same become available, but in any event within 55 days after the end of each of
the first three quarters of each of its financial years, deliver to the
Facility Agent in sufficient copies for the Banks the consolidated financial
statements of CME Ltd. and CME B.V. for such period.
12.4 Quarterly Statements (others) CME Ltd. shall as soon as the same become
available, but in any event within 55 days after the end of each of the first
three quarters of each financial year of each other Relevant Member of the
Group (other than CME N.V.), deliver to the Facility Agent in sufficient copies
for the Banks the unconsolidated financial statements of each such other
Relevant Member of the Group for such period.
12.5 Other Information CME Ltd. shall from time to time on the request of the
Facility Agent, furnish the Facility Agent with such information about the
business or financial condition of any Relevant Member of the Group as the
Facility Agent may reasonably require. In respect of any information which is
provided other than in the form of a notice or a certificate, the Facility
Agent may request in writing that the Relevant Member of the Group who provided
such information gives the Facility Agent confirmation in a written statement
as to whether or not such information is incorrect or misleading in any
material respect. If the Facility Agent has not received such written statement
within ten business days of its request in writing, the Relevant Member of the
Group who provided such information shall be deemed to have provided the
Facility Agent with a written statement that such information is not incorrect
or misleading in any material respect.
12.6 Requirements as to Financial Statements CME Ltd. shall ensure that:
(a) each set of financial statements delivered by it pursuant to
this Clause 12 (Financial Information) is certified either by
the chief financial officer of CME Ltd. or by two other duly
authorised officers of CME Ltd. as fairly presenting the
consolidated or, as the case may be, unconsolidated financial
condition of the Relevant Member of the Group to which such
financial statements relate as at the end of the period to
which those financial statements relate and of the results of
their operations during such period;
(b) each set of financial statements delivered by it pursuant to
Clause 12.1 (Annual Statements (CME Ltd. and CME B.V.)) and
12.2 (Annual Statements (others)) has been audited by
reputable international accountants (including, without
limitation, KPMG, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Deloitte Touche Tohmatsu,
Ernst & Young and PricewaterhouseCoopers or any successors
thereto); and
38
(c) each set of financial statements delivered by it pursuant to
Clauses 12.1 - 12.4 inclusive is accompanied by a Compliance
Certificate and, in the case of any annual statements, an
auditor's certificate in each case (i) confirming compliance
with Clause 13 (Financial Condition) in respect of or as at
the end of the relevant quarter to which such statements are
made up (ii) containing a calculation of the test set out in
the Fifth Schedule and (other than in the case of an
auditor's certificate) (iii) stating whether any Event of
Default, Review Event or Potential Event exists on the date
of such Compliance Certificate and, if any Event of Default,
Review Event or Potential Event then exists, specifying the
nature and extent thereof and the action (if any) which it is
taking or proposes to take with respect thereto as at the end
of the relevant quarter.
12.7 Accounting Policies The Borrower and each Guarantor shall ensure that each
set of financial statements delivered to the Facility Agent pursuant to this
Clause 12 (Financial Information) is prepared using accounting policies,
practices, procedures and reference period consistent with those applied in the
preparation of the corresponding Original Financial Statements unless, in
relation to any such set of financial statements, the Borrower or such
Guarantor notifies the Facility Agent that there have been one or more changes
in any such accounting policies, practices, procedures or reference period and
the auditors for the time being of the Borrower or Relevant Member of the Group
(in the case of annual statements) or the chief financial officer of CME Ltd.
(in any other case) provide:
(a) a description of the changes and the adjustments which would
be required to be made to those financial statements in order
to cause them to use the accounting policies, practices,
procedures and reference period upon which the relevant
Original Financial Statements were prepared; and
(b) sufficient information, in such detail and format as may be
reasonably required by the Facility Agent, to enable the
Banks to make an accurate comparison between the financial
position indicated by those financial statements and the
relevant Original Financial Statements,
and any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to reflect
the basis upon which the relevant Original Financial Statements were prepared.
13. Financial Condition
13.1 Financial Condition of the Group CME Ltd. shall ensure that the financial
condition of CME B.V., CME Ltd., the Borrower and Nova TV (each a "relevant
party") as evidenced by the most recent of the yearly and quarterly financial
statements of such relevant party delivered in accordance with Clause 12
(Financial Information) shall be such that:
(i) Leverage Ratio: At all times the ratio of Consolidated
Indebtedness of such relevant party to Consolidated Tangible
Net Worth of such relevant party as at
39
the end of each financial year or the end of each financial
quarter of such relevant party ending during any period set
out below shall not exceed the ratio set opposite such period
under the name of such relevant party set out below Provided
that for the period up to and including the third financial
quarter in 2000 of each of CME B.V. and CME Ltd., TVN and TV
3 shall be excluded from the figures relating to CME B.V. and
CME Ltd.:
LEVERAGE RATIO
Period CME Ltd. CME B.V. Nova TV
1998 2.0:1 2.0:1 1.5:1
1999 2.0:1 2.0:1 1.25:1
2000 2.0:1 2.0:1 1.0:1
2001 2.0:1 2.0:1 1.0:1
(ii) Consolidated Broadcast Cash Flow Ratio: The ratio of
Consolidated Indebtedness of such relevant party as at the
end of each financial year or the end of each financial
quarter of such relevant party falling within any period set
out below to Consolidated Broadcast Cash Flow of such
relevant party in respect of any twelve calendar month period
which ends at the end of each such financial year or
financial quarter of such relevant party shall not exceed the
ratio set opposite such period under the name of such
relevant party set out below Provided that:
(a) for the twelve calendar month period ending 31
December 1998 Studio 1+1 shall be excluded from
Consolidated Broadcast Cash Flow of CME B.V. and CME
Ltd.; and
(b) for each twelve month period ending on or prior to
the end of the third financial quarter in 1999 (in
the case of TVN) or 2000 (in the case of TV3), TVN
and/or TV3 (as the case may be) shall be excluded
from Consolidated Broadcast Cash Flow of CME B.V.
and CME Ltd.
CONSOLIDATED BROADCAST CASH FLOW RATIO
Period CME Ltd. CME B.V. Nova TV
1 October - 31 7.0:1 7.0:1 1.25:1
December 1998
1 January - 31 6.5:1 6.5:1 1.25:1
March 1999
40
1 April - 30 5.0:1 5.0:1 1.25:1
June 1999
1 July - 30 4.0:1 4.0:1 1.25:1
September 1999
1 October - 31 2.0:1 2.0:1 1.25:1
December 1999
2000 2.0:1 2.0:1 1.25:1
2001 2.0:1 2.0:1 1.25:1
(iii) Interest Coverage Ratio: The ratio of Net Cash Flow of the
Borrower to Total Interest Expense of the Borrower in respect
of any twelve calendar month period ending at the end of any
financial year or financial quarter which ends during any
year specified below shall not be less than that set opposite
such year below:
Year Ratio
1998 5.0:1.0
1999-2001 6.0:1.0
(iv) Debt Service Coverage Ratio: The ratio of Net Cash Flow of
the Borrower as at the end of any twelve calendar month
period ending at the end of any financial year or financial
quarter to Debt Service for the Borrower for such period
shall not be less than 2.00:1.
(v) Maximum Financial Indebtedness The principal amount of
financial indebtedness of Nova TV shall not exceed the
greater of CZK 1,000,000,000 and the equivalent in Czech
Crowns of $32,787,000 (being the dollar equivalent of CZK
1,000,000 calculated at CZK 30.5: $1) at any time.
13.2 Definitions In this Clause 13 (Financial Condition) (subject
to Clause 13.3):
(a) "Consolidated Broadcast Cash Flow" means, in respect of any
relevant party and any twelve month period, the
Consolidated Net Revenues of such relevant party
for such period less the sum of:
(i) consolidated operating expenses (other than
depreciation and amortisation and, in the
case of Nova TV, any Fee Payment) of such
relevant party and each of its subsidiaries
for such period;
(ii) consolidated selling and general and administrative
expenses of such relevant party and each of
its subsidiaries for such period; and
(iii) cash paid for programme rights by such relevant party
and each of its
41
subsidiaries during such period to any
person other than such relevant party or
any subsidiary of such relevant party;
(b) "Consolidated Indebtedness" means, in relation to any
relevant party, all consolidated indebtedness of
such relevant party and each of its subsidiaries
(other than Permitted Debt and all indebtedness owed
in respect of the provision of any goods or services
in the ordinary course of trading which are due for
payment within twelve months and all dividends and
taxes declared as due and payable but including the
CS Loan);
(c) "Consolidated Net Revenues" means, in relation to any
relevant party, all revenues after discounts to
advertisers of such relevant party and each of its
subsidiaries on a consolidated basis;
(d) "Consolidated Tangible Net Worth" means, in relation
to any relevant party, the excess of the
Consolidated Total Tangible Assets of such relevant
party over the Consolidated Total Liabilities of
such relevant party;
(e) "Consolidated Total Liabilities" means, in relation to any
relevant party, the aggregate on a consolidated
basis of such relevant party's and each of its
subsidiaries' current liabilities and long-term
liabilities other than, in relation to CME Ltd. and
CME B.V., any Permitted Debt;
(f) "Consolidated Total Tangible Assets" means, in relation to
any relevant party, the total assets of such
relevant party and each of its subsidiaries on a
consolidated basis less any amount attributable to
goodwill, programming rights (after amortisation),
licences, organisation costs and development costs
and any other intangible asset (after amortisation);
(g) "Debt Service" means, in respect of any period and in relation
to the Borrower the sum of all scheduled reductions
in the Total Commitments to be implemented in
accordance with Clause 6.2 (Reduction) and Total
Interest Expense of the Borrower paid or accrued
during such period;
(h) "Net Cash Flow" means, in respect of any period and in
relation to the Borrower the sum of:
(i) dividends received and interest income received from
loans made by the Borrower to any other
member of the Group, the aggregate
principal amount of all loans made by the
Borrower to CME B.V. as at the beginning of
such period less the aggregate principal
amount of all loans made by the Borrower to
CME B.V. as at the end of such period (if
such figure is a positive number),
Management Fees, Network Access Fees,
Programming Fees, royalties and other cash
received (excluding any cash received as a
result of disposal of any asset or revenue
(other than assets which are obtained and
held for resale)) by the Borrower during
such period; less
42
(ii) overheads and other cash expenses of the Borrower
and any Restricted Payments of the
types referred to in paragraph (a) of the
definition thereof by the Borrower other
than Total Interest Expense of the
Borrower;
(i) "Permitted Debt" means:
(1) in relation to CME Ltd., all financial indebtedness
in respect of the Notes and all other
financial indebtedness of CME Ltd. which is
subordinated to the satisfaction of the
Facility Agent to the rights of the
Arranger, the Agents and the Banks
hereunder and under the Facility Documents;
and
(2) in relation to CME B.V., all Intercompany Loans made
to it by CME Ltd.; and
(j) "Total Interest Expense" means, in respect of any
period in relation to the Borrower, the amount of
all interest, commissions, discounts and other fees
in respect of financial indebtedness of the Borrower
incurred or payable by the Borrower including
capitalised interest, during such period.
13.3 New Stations For the purposes of each of the definitions in
paragraphs (a) to (f) inclusive each New Station which was formed,
incorporated or acquired (whichever is the later) directly or
indirectly by CME B.V. or CME Ltd. during the twelve month period
ending on the last day of any financial year or financial quarter (as
the case may be) in relation to which such definition is to be
calculated shall be excluded from such calculation.
13.4 Accounting Terms All accounting expressions which are not
otherwise defined herein shall be defined in accordance with GAAP.
14. Covenants
14.1 Restricted Payments CME Ltd. shall ensure that:
(a) neither the Borrower nor CME B.V. will pay, make or declare any
Restricted Payment (except that the Borrower may
make any Restricted Payment of the type referred to
in paragraph (a) of the definition thereof provided
that no Event of Default or Review Event has
occurred which is continuing or would occur as a
result of the making of such Restricted Payment);
and
(b) the Borrower will not issue any further shares or other equity
after the date hereof unless, at the time of such
issue, such shares or other equity is the subject of
fully perfected, first ranking security in favour of
the Security Agent on behalf of the Banks from time
to time to the satisfaction of the Facility Agent.
14.2 Consolidations and Mergers CME Ltd. shall ensure that no Relevant
Member
43
of the Group will consolidate or merge with or into any person
without the consent of an Instructing Group (such consent not to be
unreasonably withheld or delayed). It will be unreasonable to withhold
consent to a merger or consolidation between Nova TV and CET 21 (a
"Nova merger") if:
(i) after the Nova merger takes effect the Borrower will own
directly not less than 79% of the equity and economic
interests in the surviving or principal entity resulting from
the Nova merger and such entity will own the Nova TV License;
(ii) no Event or Default or Review Event will result from the Nova
merger; and
(ii) an Instructing Group is satisfied in its sole and absolute
discretion that the Nova merger will not result in a Material
Adverse Change nor adversely affect the interests of the
Banks.
14.3 Sales of Assets Without prejudice to Clause 14.11 (Limitation on
Loans and Advances), CME Ltd. shall ensure that no Relevant Member of
the Group will sell, assign, abandon, lease or otherwise dispose of,
directly or indirectly, all or any part of its assets or revenues
Provided that:
(i) CME Ltd. may dispose of:
(a) its one share in CME Media Enterprises (UK) to any
person;
(b) cash by way of loan to CME B.V. in accordance
herewith or by way of subscription for an
equity participation in CME N.V. or by way
of any Restricted Payment not prohibited
hereunder or by way of payments not
prohibited hereunder in respect of any
financial indebtedness; or
(c) any assets used in the course of the management or
administration of the business of CME Ltd
as described in Clauses 11.14 (Ownership of
Assets of CME Ltd.);
(ii) CME N.V. may dispose of:
(a) 1% of the outstanding share capital of CME
Medienbeteiligungen GmbH to CME B.V.;
(b) cash by way of loan to CME B.V. or by way
of subscription for an equity participation
in CME B.V. or by way of any Restricted
Payment not prohibited hereunder; or
(c) any assets used in the course of the management or
administration of the business of CME N.V.
as described in Clauses 11.15 (Activities
of CME N.V.) and 14.4 (Changes in Business)
Provided that CME N.V. shall not be permitted to sell, assign,
abandon, lease or otherwise dispose of any of its
shares in CME B.V.;
(iii) CME B.V. and CME Czech II may dispose of:
44
(a) any assets in the ordinary course of business of the
disposing entity on an arm's length basis
at fair market value including (in the case
of CME B.V.) the disposal of equity
interests in any person held by CME B.V. or
CME Czech II excluding, for the avoidance
of doubt:
(i) shares and voting rights in the Borrower;
and
(ii) disposals of shares and voting rights in CME
Czech II by CME B.V.;
(b) assets in exchange for other assets comparable or
superior as to type;
(c) obsolete assets;
(d) any assets which in any financial year do not exceed
20% of CME B.V.'s or CME Czech II's (as the
case may be) Consolidated Total Tangible
Assets as determined from the latest
relevant annual audited financial
statements delivered to the Facility Agent
pursuant to Clause 12 (Financial
Information); or
(e) cash by way of loan to any member of the Group or by
way of subscription for an equity interest
in any member of the Group or by way of any
Restricted Payment not prohibited hereunder
or by way of payments not prohibited
hereunder in respect of any financial
indebtedness;
(iv) the Borrower may dispose of:
(a) its equity participation in Nova TV (provided that
no such disposal shall be permitted if, as
a result, the Borrower would cease to own,
beneficially, 79% of the equity and
economic interests in Nova TV) but only if
the proceeds thereof are applied in
permanent reduction or discharge of the CS
Loan;
(b) cash by way of (i) any Restricted Payment permitted
hereunder or (ii) any loan to CME B.V. in
accordance with Clause 14.11 (Limitation on
Loans and Advances); or
(c) any assets used in the course of the management or
administration of the business of the
Borrower as described in Clauses 11.17
(Ownership of Assets by the Borrower) and
14.7 (Activities of the Borrower);
(v) Nova TV may dispose of:
(a) any assets (other than any right, title or interest
in or in relation to the Nova TV Licence or
the Service Agreement) in the ordinary
course of its business on an arm's length
basis at fair market value;
45
(b) any assets which in any of its financial years do not
exceed 5% of its Consolidated Total
Tangible Assets (other than any right,
title or interest in or in relation to the
Nova TV Licence or the Service Agreement),
in each case determined from its latest
relevant annual audited financial
statements delivered to the Facility Agent
pursuant to Clause 12 (Financial
Information); or
(c) cash by way of any Restricted Payment or by way of
payments not prohibited hereunder in
respect of any financial indebtedness.
14.4 Changes in Business CME Ltd. shall ensure that none of itself,
CME B.V., CME Czech II and Nova TV will:
(i) make any change in the nature or in the present method of
conducting business which could reasonably be
expected to result in a Material Adverse Change; or
(ii) (in the case of Nova TV only) engage in any business
other than business of the same general type as now
conducted by it under and/or in accordance with the
Nova TV Licence and the Service Agreement,
and shall ensure that CME N.V. shall not carry on any business other
than holding all the outstanding share capital of CME B.V. and 1% of
the outstanding share capital in CME Medienbeteiligungen GmbH and
shall not own any assets other than those specified in Clause 11.15
(Activities of CME N.V.).
14.5 Maintenance of Nova TV Licence and Intellectual Property Rights
CME Ltd. shall ensure that Nova TV will ensure that each of the Nova
TV Licence and the Service Agreement is preserved, renewed and kept in
full force and effect and that the "Nova" name is not sold or used by
any person other than a member of the Group or by way of the
merchandising of any products.
14.6 Ownership of Assets by CME Ltd. CME Ltd. shall not:
(i) own any assets or revenues unless such assets and revenues
(other than rights to receive dividends and the
shares owned by it in CME N.V., CME Ltd.'s Bank
Accounts, the one share owned by it in CME Media
Enterprises (UK) Ltd and shares in a company
incorporated in England (provided that promptly upon
CME Ltd. becoming the owner of such shares it shall
contribute the loan of $ 22,497,750 made by it to
CME B.V. and referred to in the Sixth Schedule to
such company as share premium and all such shares
except one shall be transferred to CME N.V. who
shall transfer the same to CME B.V.) are the subject
of fully perfected first-ranking security in favour
of the Security Agent to secure the claims of the
Agents, Arranger and the Banks and each of them
under the Facility Documents or are used solely in
the management and administering of its activities
referred to in Clause 11.14 (Ownership of Assets By
CME Ltd.); or
(ii) grant or permit to exist any rights of pre-emption in respect
of the shares of
46
CME N.V.
14.7 Activities of the Borrower Without prejudice to any other
provision hereof, the Borrower shall not engage in any business or
activity or incur any liability (other than operating expenses up to a
maximum of $10,000 per financial year of the Borrower) or own any
revenues or assets whatsoever other than as stated in Clause 11.17
(Ownership of Assets by the Borrower) or enter into any agreement,
instrument or arrangement whatsoever other than:
(i) the execution, delivery and performance of its obligations
under, and the exercise of the rights granted to it
by, the Facility Documents to which it is a party
and the transactions hereby and thereby
contemplated;
(ii) for the purposes of documenting the making of, or the making
of, Intercompany Loans and Restricted Payments
permitted hereunder;
(iii) in order to manage its voting and economic rights or interests
in Nova TV and matters incidental thereto; or
(iv) any agreement, instrument or arrangement solely for the
purpose of effecting the sale and transfer to any
other person of its voting and economic interests in
Nova TV provided that such voting and economic
interests following such sale are no less than 79%.
14.8 Loans to CME N.V., the Borrower, and Nova TV None of CME N.V.,
the Borrower and Nova TV will incur (or permit to subsist) any
financial indebtedness other than:
(i) in the case of Nova TV, financial indebtedness not exceeding
in aggregate the greater of CZK 1,000,000,000 and
the equivalent in Czech Crowns of $32,787,000 (being
the dollar equivalent of CZK 1,000,000,000
calculated at CZK 30.5: $1) from any person, such
financial indebtedness to be used solely for the
business and operations of Nova TV and not for the
purposes of making any Restricted Payment, payment
of any Management Fees, Network Access Fees or
Programming Fees or for the purpose of making any
loan or providing financial indebtedness to any
other person; and
(ii) in the case of CME N.V. and the Borrower, financial
indebtedness incurred under the Facility Documents
or (in the case of the Borrower) pursuant to the
application of Clause 6.5 (Application of Relevant
Payments), and the Borrower shall ensure within
sixty days of the date hereof that its constitutive
documents are amended to ensure that it does not
have power to incur any financial indebtedness other
than financial indebtedness permitted under the
Facility Documents or pursuant to the application of
Clause 6.5 (Application of Relevant Payments).
14.9 Negative Pledge CME Ltd. shall ensure that no Relevant Member of
the Group will create, assume or suffer to exist any encumbrance on
any of its revenues or assets now owned or hereafter acquired by it,
except for:
47
(i) a Permitted Encumbrance granted to any person other than the
holders of the Notes or any of them or any person on
their or its behalf; and
(ii) any security interest created pursuant to the Facility
Documents.
14.10 Limitation on Sale-Leasebacks CME Ltd. shall ensure that no
Relevant Member of the Group will enter into any arrangement with any
person providing for the leasing by it of any property that has been
or is to be sold or transferred by it to such person more than 60 days
after the acquisition thereof or the completion of construction and
commencement of full operation thereof.
14.11 Limitation on Loans and Advances CME Ltd. shall ensure that none
of the Relevant Members of the Group will make or commit to make, or
allow to remain outstanding any advance, loan or extension of credit
to, or enter into any Guarantee (other than any Guarantee hereunder)
with respect to the obligations of, any person, except:
(i) extensions of trade credit in the ordinary course of business;
(ii) loans and advances by any Relevant Member of the Group (other
than the Borrower and CME N.V.) to its officers and
directors (or its employees) Provided that such
loans and advances are:
(a) approved by the chief financial officer of such
Relevant Member of the Group as the case
may be, for travel, entertainment or
relocation expenses in the ordinary course
of business; and
(b) not in excess, in aggregate, of $3,000,000 or
equivalent thereof from time to time; and
(iii) (without prejudice to Clause 14.8 (Loans to CME N.V., the
Borrower, and Nova TV) and except as a result of the
application of Clause 6.5 (Application of Relevant
Payments)) loans and advances:
(a) by CME Ltd. to CME B.V. (provided such loans comply
with Clause 14.12 (Terms of Intercompany
Loans) and are subject to an Intercompany
Loan Agreement) and Guarantees issued by
CME Ltd. to any person in respect of any
indebtedness of any member of the Group;
(b) by CME B.V. or CME Czech II to any member of the
Group (other than the Borrower, CME N.V. or
CME Ltd.) and Guarantees issued by CME B.V.
or CME Czech II to any person in respect of
any indebtedness of any member of the Group
(other than the Borrower, CME N.V. or CME
Ltd) Provided that any such loans or
advances made by CME B.V. or CME Czech II
to Nova TV (1) shall be made on
commercially reasonable terms which are on
terms which are as good as or better for
the Nova TV than the terms that it could
have obtained from a commercial lender in
an arms' length transaction and (2) shall
not cause a breach of any provision hereof;
or
48
(c) by CME N.V. to CME B.V; or
(d) by the Borrower to CME B.V. under an Intercompany
Loan Agreement by way of the making of a
loan of the proceeds of any amounts drawn
down hereunder or of any amount held by it
which is not required to be placed in the
Dollar Collection Account in accordance
with Clause 6.5 (Application of Relevant
Payments) or which is held by it (whether
in the Local Currency Collection Account,
the Guilder Account or otherwise) and which
is not required to be converted into
dollars and transferred to the Dollar
Collection Account in accordance with
Clause 6.5 (Application of Relevant
Payments) provided that all right, title
and interest of the Borrower in or to such
indebtedness referred to in this Clause
14.11(iii)(d) shall be secured in favour of
the Security Agent to secure the claims of
the Agents, Arranger and the Banks and each
of them under the Facility Documents to the
satisfaction of the Facility Agent; or
(e) by CME B.V. or CME Czech II to any person who is
party to a joint venture or similar
arrangement with a member of the Group; or
(f) by Nova TV to Radio Alpha a.s. in an aggregate
principal amount outstanding at any time
not exceeding $1,000,000 (or its equivalent
in another currency).
14.12 Terms of Intercompany Loans CME Ltd. shall ensure that:
(i) all Intercompany Loans made are governed by Dutch law or
such other law as may be agreed by the Facility
Agent in its sole and absolute discretion (and the
Facility Agent hereby agrees that the Intercompany
Loans referred to in the Sixth Schedule
(Intercompany Indebtedness) from CME Ltd. to CME
B.V. and any future loan from CME Ltd. to CME B.V.
may be governed by Bermudan law);
(ii) all Intercompany Loans made by the Borrower with the
proceeds of any Advance shall produce earnings for
the Borrower which exceed the cost to the Borrower
of borrowing such Advance and shall mature on a date
which is no later than the final maturity date of
the Facility (whether in the normal course, by
default or otherwise);
(iii) all Advances are used for the making or refinancing of
Intercompany Loans to CME B.V. provided that, to the
extent any such Intercompany Loan is funded by an
Advance, the proceeds of repayment of any such
Intercompany Loan shall be used only either to repay
Advances or to make another Intercompany Loan to CME
B.V.; and
(iv) it shall not demand repayment of the principal amount of any
Intercompany Loan which is outstanding at the date
hereof when any amount is due or owing (whether
present or future, actual or contingent) under the
49
Facility Documents or any of them or the Arranger,
the Agents and the Banks or any of them remain under
any actual or contingent obligations under the
Facility Documents or any of them unless such the
principal amount to be repaid is demanded solely for
the purpose of making scheduled payments of interest
(excluding, without limitation, default interest) in
respect of the Notes and then only when such amount
is due or is about to become due and the amount
repaid as a result of such demand is promptly
applied solely for such purpose.
14.13 Transactions with Affiliates CME Ltd. shall ensure that none of
the Relevant Members of the Group will:
(i) enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the
rendering of any service, with any member of the
Group or assume or suffer to exist any employment or
consulting contract with any Affiliate referred to
in paragraph (b) of the definition thereof except
any transaction or contract which is in the ordinary
course of business, and which is upon fair and
reasonable terms no less favourable than those that
would be obtained in a comparable arm's length
transaction with a person not a member of the Group
or an Affiliate referred to in paragraph (b) of the
definition thereof and which is otherwise not
prohibited hereunder;
(ii) make any advance or loan to any Affiliate referred to in
paragraph (b) of the definition thereof or to any
trust of which any Affiliate referred to in
paragraph (b) of the definition thereof is a
beneficiary, or to any person on the guarantee of
either of the foregoing; or
(iii) pay any fees (other than reasonable directors' fees or
expenses) or expenses to, or reimburse or assume any
obligation for the reimbursement of any expenses
incurred by any Affiliate referred to in paragraph
(b) of the definition thereof,
Provided that nothing contained in this Clause 14.13 (Transactions
with Affiliates) shall be deemed to prohibit any Relevant Member of
the Group (i) from entering into or performing any consulting,
management, stock option or employment agreements with an employee of
such Relevant Member of the Group or (ii) from making loans and
advances permitted by Clause 14.11 (Limitations on Loans and
Advances).
14.14 Bank Accounts The Borrower and CME Ltd. will ensure that it
shall not have any bank accounts, except those bank accounts pledged
in favour of the Security Agent and/or the Banks under the Borrower's
Pledge of Bank Accounts, CME Ltd.'s Bank Accounts and those opened
after providing the Facility Agent with five business days' prior
written notice of details thereof provided that neither the Borrower
nor CME Ltd. shall permit any funds to be credited to any such account
unless such account and all right, title and interest in or to the
same have been secured in favour of the Security Agent to secure the
claims of the Agents, Arranger and the Banks and each of them under
the Facility Documents to the satisfaction of the Facility Agent.
14.15 Enforcement of Rights under the Licence CME Ltd. shall ensure
that Nova
50
TV shall use its best efforts to ensure that CET 21 shall,
diligently enforce and protect all its rights under the Nova TV
Licence and use its reasonable endeavours to pursue to the extent
necessary, appropriate and economically feasible any claims it may
have against any third parties in relation thereto.
14.16 Untrue Representations After the delivery of any Notice of
Drawdown and before the making of the Advance requested therein, the
Borrower shall notify the Facility Agent of the occurrence of any
event which results in or may reasonably be expected to result in any
of the representations contained in Clause 11 (Representations) and
which are to be repeated on the making of such Advance being untrue at
or before the time of the making of such Advance.
14.17 Claims Pari Passu CME Ltd. shall ensure that at all times the
claims of the Agents, the Arranger and the Banks against each Obligor
and Nova TV under each of the Facility Documents to which it is a
party and against CME B.V. and the Borrower in relation to any claim
that may arise as a result of the enforcement of the Borrower's Pledge
of Intercompany Loans rank under the laws of the Relevant Jurisdiction
of such Obligor, Nova TV or CME B.V. (as the case may be) at least
pari passu with the claims of all its other unsecured and
unsubordinated creditors save those whose claims are preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general
application.
14.18 Distribution of Profits etc. CME Ltd. shall ensure that no
Relevant Member of the Group shall enter into or permit the
continuance of any partnership, profit-sharing or royalty agreement or
other arrangement whereby the Borrower's or Nova TV's income or
profits are, or might be:
(i) shared with any person (other than a shareholder); or
(ii) distributed in such a manner that the Borrower's proportion
of such income or profits is reduced in any way or
in such a manner whereby the timing or amount of any
such distribution would be altered from that which
would be the case absent the entering into such
partnership, profit-sharing, royalty or other
arrangement
or (save as stated herein) enter into or permit to subsist any
arrangement whereby Nova TV is restricted in distributing its income
or profits or paying Management Fees, Network Access Fees or
Programming Fees to any member of the Group.
14.19 Compliance with Laws CME Ltd. shall ensure that each Relevant
Member of the Group shall comply in all material respects with all
material applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities necessary in connection with
the entering into of the Facility Documents and/or the normal course
of its business, (including its business conducted in connection with
the Nova TV Licence or the Service Agreement), except where the
necessity of compliance therewith is being contested in good faith by
appropriate proceedings.
14.20 Insurance CME Ltd. shall ensure that each Relevant Member of the
Group will maintain insurance with responsible and reputable insurers
in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses, in similar locations and
owning similar properties.
51
14.21 Notice of Defaults and Litigation CME Ltd. will give the
Facility Agent prompt written notice of:
(i) the occurrence of any Event of Default, Review Event or
Potential Event;
(ii) the filing or commencement of any action, suit or proceeding
which either (a) would reasonably be expected to
result in a judgment of an amount of $5,000,000 or
more against any Relevant Member of the Group or (b)
relates to the Nova TV Licence or the Service
Agreement;
(iii) any change in the rate of withholding tax on dividend
distributions or in the laws, rules or regulations
relating to exchange controls in the Czech Republic
of which any Relevant Member of the Group is aware;
(iv) any default under the Nova TV Licence or the Service
Agreement or an amendment thereof or waiver of any
provision thereof; and
(v) the receipt of any notice by CET 21 (in relation to the Nova
TV Licence) from any government, court, any
regulatory authority in relation to any default
thereunder or any amendment or waiver of any
provision thereof enclosing a copy of such notice,
and, upon receipt of a written request to that effect from the
Facility Agent, confirm to the Facility Agent that, save as previously
notified to the Facility Agent or as notified in such confirmation, no
Event of Default, Review Event or Potential Event, filing or
commencement or change in such rate of withholding tax or laws, rules
or regulations or default, amendment, waiver or giving of any such
notice under or in relation to the Nova TV Licence or the Service
Agreement has occurred.
14.22 Compliance Generally CME Ltd. shall ensure that each Relevant
Member of the Group will obtain, maintain and comply in all material
respects with the terms of (and if requested by the Facility Agent,
supply certified copies to the Facility Agent of) any material
consent, licence, approval or authorisation required for the conduct
of its business or in connection with the entering into and
performance of its obligations under the Facility Documents to which
it is a party and the Service Agreement.
14.23 Payment Instruction The Borrower will give an irrevocable
payment instruction to Nova TV to transfer all Relevant Payments to be
paid by Nova TV to the Borrower:
(i) in dollars to the Dollar Collection Account; or
(ii) in any other currency to the Local Currency Collection Account.
14.24 Further Assurances The Borrower and CME Ltd. shall, and CME Ltd.
shall ensure that each other Relevant Member of the Group shall,
without prejudice to any provision of any Security Document, execute
and file all such further documents and instruments, and perform such
other acts, as the Facility Agent may reasonably determine are
necessary or advisable (on the basis of advice received from reputable
independent legal counsel) to maintain the security interests granted
to the Security
52
Agent and/or the Banks in the Security Documents and to maintain the
priority of such security interests purported to be granted pursuant
to the Security Documents or, in the case of the security interests
created by CME Ltd., to ensure that the claims of the Arranger, the
Agents and the Banks under the Facility Documents against CME Ltd.
rank in priority to the claims of the holders of the Notes.
14.25 Ensuring Compliance Each Relevant Member of the Group shall vote
its ownership interests in Nova TV and/or enter into management
agreements, network access agreements and/or programming services
agreements with Nova TV so that (to the extent available) sufficient
dividend, management fee, network access fee and programming fee
income is paid to the Borrower by Nova TV to ensure that the Borrower
is able to comply with its covenants and obligations hereunder.
14.26 Notification of Acquisitions If Nova TV acquires any equity
interest in any person or (without prejudice to any limitation on
disposals contained herein) disposes of any equity interest in any
person, CME Ltd shall forthwith notify the Facility Agent of such
acquisition or disposal together with the percentage equity interest
in such person acquired or disposed of by Nova TV.
14.27 Amendment, Redemption and Defeasance of the Notes CME Ltd.
shall not at any time:
(i) redeem the Notes in whole or in part (other than with the net
cash proceeds of the issue of common stock by CME
Ltd.);
(ii) make any modification or amendment of any of the terms and
conditions of the Notes which would result in:
(a) the principal amount of any Note becoming payable
prior to its stated maturity; or
(b) an increase in the amount of interest payable on any
Note; or
(c) the bringing forward of the timing of the payment of
such interest,
or make any other amendment which would result in any Relevant Member
of the Group being unable to comply with all or any of its obligations
under any Facility Document or Intercompany Loan Agreement or restrict
or prevent Nova TV from making any Restricted Payment without the
prior written consent of the Facility Agent or as otherwise permitted
hereunder.
14.28 Further Security CME Ltd. shall procure that each member of the
Group shall notify the Facility Agent in respect of any agreement
replacing the Management Support Agreement, the Network Access
Agreement and the Programming Services Agreement relating to Nova TV
or any other agreements relating to the provision of management
services, network access or programming services by any member of the
Group to Nova TV or relating to the distribution of income or profits
to any member of the Group by Nova TV and execute such security
documentation as the Facility Agent may reasonably request to enable
the Security Agent and the Banks to obtain a fully perfected first
ranking security interest over the benefit of such agreements.
14.29 CME Ltd.'s Bank Accounts CME Ltd. shall ensure that no more than
53
$5,000,000 in aggregate is standing to the credit of CME Ltd.'s Bank
Accounts at any time unless the aggregate balance standing to the
credit of CME Ltd.'s Bank Accounts which exceeds $5,000,000 at such
time is derived from the issue by CME Ltd. of any share capital or the
incurrence of any financial indebtedness (other than any financial
indebtedness incurred for the purpose of refinancing any existing
financial indebtedness of CME Ltd.) provided that such aggregate
balance is reduced to below $5,000,000 within 30 days from the date on
which such proceeds were credited to such account.
14.30 Year 2000 Requirements CME Ltd. shall ensure that all Computer
Systems of each Relevant Member of the Group shall be, by no later
than 31 December 1999, Year 2000 Compliant (save to the extent that
any non-compliance would not result in a Material Adverse Change).
14.31 Taking Security Interest in Nova TV CME Ltd. shall ensure that,
if and when a valid and enforceable security interest in the
Borrower's economic or other interest(s) in Nova TV may or can be
vested in the Security Agent on behalf of the Arranger, the Agents and
the Banks, the Borrower shall, at the request of the Security Agent,
grant such security interest provided that the granting of such
security interest does not have a material adverse effect on the
business of Nova TV as a result of regulatory, political or public
sensitivities.
14.32 Amendment of the Partnership Agreement CME Ltd. shall ensure
that the Borrower shall:
(i) as soon as reasonably practicable after the date hereof and in
any event by no later than 30 September 1999 convene
a general meeting of Nova TV and pass a resolution
which has the effect of deleting Clause 14.3 of the
Partnership Agreement; and
(ii) shall not at any time exercise its voting rights in Nova TV or
otherwise take any action to wind-up or dissolve
Nova TV.
15. Events of Default
Each of Clause 15.1 (Failure to Pay) to Clause 15.21 (Discontinuation
of Broadcasting) describes circumstances which constitute an Event of
Default for the purposes of this Agreement. Clause 15.22 (Acceleration
and Cancellation), Clause 15.23 (Advances due on Demand) and Clause
15.24 (Length of Terms) deal with the rights of the Agents and the
Banks after the occurrence of an Event of Default.
15.1 Failure to Pay The Borrower or any of the Guarantors fails to pay
any sum due from it under any Facility Document at the time (or in the
case of any sum other than principal, within five business days of the
time), in the currency and in the manner specified herein.
15.2 Misrepresentation Any representation or written statement made or
deemed to be made by any Relevant Member of the Group in any Facility
Document or in any notice or certificate delivered by it pursuant
thereto is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
15.3 Specific Covenants The Borrower or any Relevant Member of the
Group fails
54
duly to perform or comply with any of the obligations expressed to be
assumed by it in Clause 12 (Financial Information) or Clause 14
(Covenants) and such failure, if capable of remedy, is not remedied
within 15 days after the Borrower or any Relevant Member of the Group
becomes aware of such failure Provided that such 15 day period shall
not apply to a breach of Clause 14.4 in relation to CME N.V. (Changes
in Business).
15.4 Other Obligations Any Relevant Member of the Group or CET 21
fails duly to perform or comply with any other obligation expressed to
be assumed by it in any Facility Document or the Service Agreement and
such failure, if capable of remedy, is not remedied within 30 days
after the Facility Agent has given written notice thereof to the
Borrower.
15.5 Financial Condition At any time any of the requirements of Clause
13.1 (Financial Condition of the Group) (other than Clause 13.1(v)
(Financial Condition of the Group)) is not satisfied or there is a
breach of Clause 13.1(v) (Financial Condition of the Group) which is
not remedied for 10 business days.
15.6 Cross Default Any financial indebtedness of any Relevant Member
of the Group in respect of any amount at the time outstanding which,
when aggregated with all other amounts then outstanding to which this
Clause 15.6 (Cross Default) applies, exceeds $1,000,000 ("relevant
indebtedness") is not paid when due (or within any originally
applicable grace period), any relevant indebtedness of any Relevant
Member of the Group is declared to be or otherwise becomes due and
payable prior to its specified maturity or any creditor or creditors
of any Relevant Member of the Group become entitled to declare any
relevant indebtedness of any Relevant Member of the Group due and
payable prior to its specified maturity.
15.7 Insolvency and Rescheduling Any Relevant Member of the Group or
CET 21 is unable to pay any relevant indebtedness as it falls due,
commences negotiations in contemplation of actual or potential default
with any one or more of its creditors with a view to the general
readjustment or rescheduling of any relevant indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors.
15.8 Winding-up Any Relevant Member of the Group or CET 21 takes any
corporate action or other steps are taken or legal proceedings (other
than frivolous or vexatious steps or proceedings as determined by an
independent reputable law firm) are started for its winding-up,
dissolution, administration or re-organisation or for the appointment
of a liquidator, receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or
all of its revenues and assets and (if such steps or proceedings are
being contested in good faith on the basis of legal advice from a
reputable law firm and sufficient reserves have been made in
accordance with GAAP to discharge the relevant claim) such steps or
proceedings are not discharged within 30 days.
15.9 Judgments, Execution or Distress Any judgement in excess of
$5,000,000 (or equivalent in any other currency) or any execution or
distress is levied against, or an encumbrancer takes possession of,
the whole or any part of, the property, undertaking or assets of any
Relevant Member of the Group having a book value which, when
aggregated with the book value of all other property, undertaking or
assets to which this Clause 15.9 (Judgments, Execution or Distress)
applies, exceeds $5,000,000 and (if such judgement or execution is
being contested in good faith on the basis of legal advice
55
from a reputable law firm and sufficient reserves have been made in
accordance with GAAP to discharge the relevant claim) such judgement or
execution is not discharged within 45 days.
15.10 Analogous Events Any event occurs which under the laws of any
jurisdiction has a similar or analogous effect to any of those events
mentioned in Clause 15.7 (Insolvency and Rescheduling), Clause 15.8
(Winding-up) or Clause 15.9 (Judgments, Execution or Distress).
15.11 Exclusivity CET 21 is not the exclusive holder of the Nova TV
Licence and/or Nova TV is not, together with CET 21, exclusively
entitled to benefit therefrom.
15.12 Loss of Nova TV Licence The Nova TV Licence is lost, revoked,
cancelled or withdrawn, or lapses or CET 21 or any Relevant Member of
the Group is served with a notice of default in respect of the Nova TV
Licence and the same is not renewed or such notice of default is not
revoked within 30 days on terms not materially prejudicial to the
operation of the business of any Relevant Member of the Group unless
the Facility Agent has received a legal opinion within such 30 day
period from a reputable law firm confirming that such revocation,
cancellation or withdrawal or notice of default has no foundation in
law and CET 21 or the Relevant Member of the Group shall be entitled
to have such revocation, cancellation or withdrawal or notice of
default reversed or discharged and CET 21 or the Relevant Member of
the Group is taking all steps open to it diligently to have such
revocation, cancellation or withdrawal or notice of default reversed
or discharged.
15.13 Governmental Intervention By or under the authority of any
government, (a) the management of any Relevant Member of the Group is
wholly or partially displaced or the authority of any Relevant Member
of the Group in the conduct of a material part of its business is
wholly or partially curtailed or (b) all or any of the issued shares
or equity interests of any Relevant Member of the Group or the whole
or any material part of their material revenues or assets is seized,
nationalised, expropriated or compulsorily acquired.
15.14 Repudiation Any Relevant Member of the Group or CET 21
repudiates any Facility Document, the Partnership Agreement, the
Service Agreement or any Intercompany Loan Agreement to which it is
expressed to be a party or does or causes to be done any act or thing
which has the effect of repudiating any Facility Document, the
Partnership Agreement, the Service Agreement or any Intercompany Loan
Agreement to which it is expressed to be a party or _eska Spo_itelna
a.s. repudiates the Limited Recourse Agreement.
15.15 Ownership of CME Ltd. Any person or group of persons acting in
concert (which does not have control at the date hereof) acquires
control of CME Ltd., whether directly or indirectly (and for this
purpose "control" of CME Ltd. includes the holding of more than 50% of
the voting rights attaching to the issued shares of CME Ltd., the
power to appoint and/or remove all or a majority of the members of the
board of directors of CME Ltd. or otherwise directly or indirectly to
control or have the power to control the affairs and policies of CME
Ltd.).
15.16 Ownership of CME B.V. and CME N.V. Either CME N.V. or CME B.V.
ceases to be a wholly owned (directly or indirectly) subsidiary of CME
Ltd..
56
15.17 Ownership of Borrower The Borrower ceases to be a wholly owned
(directly or indirectly) subsidiary of CME B.V..
15.18 Partnerships Interests The Borrower ceases to own a direct
equity interest equal to at least 79% of the voting rights and
economic interest of Nova TV or such interest is not or ceases to be
freely transferable; or any member of the Group shall agree to any
change in Clauses 10.6 - 10.8 of the Partnership Agreement or any
other provision of the Partnership Agreement that would in the
reasonable opinion of the Facility Agent:
(i) cause a material adverse change in the profit distribution of
Nova TV;
(ii) cause the Borrower to incur any further liability under the
Partnership Agreement; or
(iii) amend any provision which allows any decision to be taken by
members holding 79% of the voting rights in Nova TV;
or
(iv) impair the free transferability of any voting or economic
rights or interests in Nova TV.
15.19 Material Adverse Change Any event or series of events occurs and
continues which could reasonably be expected to result in a Material
Adverse Change.
15.20 Security Any of the Security Documents does not or ceases to
constitute perfected first ranking security in respect of the assets
intended to be secured thereby or such security is not or ceases to be
enforceable in accordance with its terms (subject to any limitations
arising from administration, bankruptcy, insolvency, liquidation,
reorganisation and similar laws generally affecting the rights of
creditors) or the shares in the Borrower are not or cease to be freely
transferable upon any enforcement of the Borrower Pledge of Shares or
are freely transferable but not, as a result of any event or
circumstance occurring or arising after the date hereof, without the
occurrence upon such transfer of any adverse effect on the validity or
continuance of the Nova TV Licence or on the ownership by the Borrower
of 79% of the voting and economic interest in Nova TV and (in case of
any of the foregoing) the same, if capable of remedy, is not so
remedied within 30 days of written notice thereof from the Facility
Agent to CME Ltd.
15.21 Discontinuation of Broadcasting The television station which at
the date hereof is operating under the name "Nova TV" voluntarily
ceases to be broadcast in the whole or any part of the Czech Republic
or such television station ceases involuntarily to be broadcast in the
whole or any part of the Czech Republic and, if such involuntary
cessation is capable of remedy, the same is not so remedied within 15
days of commencement of such cessation.
15.22 Acceleration and Cancellation Upon the occurrence of an Event of
Default or at any time thereafter if the same is still continuing, the
Facility Agent may (and, if so instructed by an Instructing Group,
shall) by written notice to the Borrower:
(a) declare the Advances to be immediately due and payable
(whereupon the same
57
shall become so payable together with accrued
interest thereon and any other sums then owed by the
Borrower hereunder) or declare the Advances to be due
and payable on demand of the Facility Agent; and/or
(b) declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each
Bank shall be reduced to zero.
15.23 Advances Due on Demand If, pursuant to Clause 15.23
(Acceleration and Cancellation), the Facility Agent declares the
Advances to be due and payable on demand of the Facility Agent, then,
and at any time thereafter, the Facility Agent may (and, if so
instructed by an Instructing Group, shall) by written notice to the
Borrower require repayment of the Advances on such date as it may
specify in such notice (whereupon the same shall become due and
payable on such date together with accrued interest thereon and any
other sums then owed by the Borrower hereunder) or withdraw its
declaration with effect from such date as it may specify in such
notice.
15.24 Length of Terms If, pursuant to Clause 15.23 (Acceleration and
Cancellation), the Facility Agent declares the Advances to be due and
payable on demand of the Facility Agent, the Term in respect of any
such Advance shall, if the Facility Agent subsequently demands payment
before the scheduled Repayment Date in respect of such Advance, be
deemed (except for the purposes of Clause 17.4 (Broken Periods)) to be
of such length that it ends on the date that such demand is made.
15.25 Review Events
If at any time:
(i) any act, condition or thing required to be done, fulfilled or
performed in order:
(a) to enable any Relevant Member of the Group or CET 21
lawfully to enter into, exercise its rights
under and perform the obligations expressed
to be assumed by it in any Facility
Document, the Partnership Agreement, the
Service Agreement or any Intercompany Loan
Agreement to which it is expressed to be a
party;
(b) to make each Facility Document, the Partnership
Agreement, the Service Agreement or any
Intercompany Loan Agreement to which it is
expressed to be a party admissible in
evidence in the Relevant Jurisdiction of
the Relevant Member(s) of the Group party
to such agreement
is not done, fulfilled or performed; or
(ii) it is or has become unlawful for any Relevant Member of the
Group or CET 21 to perform or comply with any
or all of its obligations under any Facility
Document, the Partnership Agreement, the Service
Agreement or any Intercompany Loan Agreement to
which it is expressed to be a party;
58
(iii) any of the obligations of any Relevant Member of the Group or
CET 21 under any Facility Document, the Partnership
Agreement, the Service Agreement or any Intercompany
Loan Agreement to which it is expressed to be a
party or of _eska Spo_itelna a.s. under the Limited
Recourse Agreement are not or cease to be legal and
valid and binding except where the same may be
limited by applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting
creditors' rights generally or by equitable
principles; or
(iv) the Partnership Agreement or the Service Agreement is
terminated or CET 21 or Nova TV commits or fails
to undertake any act or thing which could reasonably
be expected to result in the termination of the
Service Agreement; or
(v) any amendment is made to the Service Agreement which has an
adverse effect on Nova TV or on its rights and
benefits thereunder without the prior written
consent of the Banks;
(vi) CME Ltd. terminates the appointment of ▇▇ ▇▇▇▇▇▇ Delloye or
▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ unless a replacement person is
found whom the Facility Agent reasonably considers
to be appropriate within 45 days of such person's
employment being terminated; or
(vii) without prejudice to Clause 14.2 (Consolidations and Mergers),
at any time prior to the Final Maturity Date CET 21
disposes of, or agrees to dispose of, to any person
(other than Nova TV) the ownership or use of all or
any rights in respect of the Nova TV Licence or all
or any rights in relation to the Nova TV Licence
which may have been contributed to Nova TV or the
Borrower fails diligently to ensure (having regard
to the interests of the Banks) that CET 21 complies
with its obligations under Clause 10.6 - 10.8 of the
Partnership Agreement
then, and in any such case and at any time thereafter so long as such
event is continuing, the Facility Agent shall, if so instructed by an
Instructing Group, (and the Facility Agent may without the instruction
of an Instructing Group if it considers such action to be advisable in
order to protect the rights of the Agents, the Arranger, the Banks or
any of them under any Facility Document) by written notice to the
Borrower:
(a) declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together
with accrued interest thereon and any other sums
then owed by the Borrower hereunder) or declare the
Advances to be due and payable on demand of the
Facility Agent; and/or
(b) declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each
Bank shall be reduced to zero.
59
PART 7
GUARANTEE
16. Guarantee and Indemnity
16.1 Guarantee Each Guarantor jointly and severally irrevocably and
unconditionally guarantees to the Agents, the Arranger and the Banks
the due and punctual observance and performance of all the terms,
conditions and covenants on the part of the Borrower contained in this
Agreement and agrees to pay to the Facility Agent from time to time on
demand any and every sum or sums of money which the Borrower is at any
time liable to pay to the Agents, the Arranger and the Banks or any of
them under or pursuant to this Agreement and which has become due and
payable but has not been paid at the time such demand is made.
16.2 Indemnity The Guarantors jointly and severally irrevocably and
unconditionally agree as a primary obligation to indemnify the Agents,
the Arranger and the Banks from time to time on demand by the Facility
Agent from and against any loss incurred by the Agents, the Arranger
and the Banks or any of them as a result of any of the obligations of
the Borrower under or pursuant to this Agreement being or becoming
void, voidable, unenforceable or ineffective as against the Borrower
for any reason whatsoever, whether or not known to the Agents, the
Arranger and the Banks or any of them or any other person, the amount
of such loss being the amount which the person or persons suffering it
would otherwise have been entitled to recover from the Borrower.
16.3 Additional Security The obligations of the Guarantors contained
in this Clause 16 (Guarantee and Indemnity) shall be in addition to
and independent of every other security which the Agents, the Arranger
and the Banks or any of them may at any time hold in respect of the
Borrower's obligations hereunder.
16.4 Continuing Obligations The obligations of the Guarantors
contained in this Clause 16 (Guarantee and Indemnity) shall constitute
and be continuing obligations notwithstanding any settlement of
account or other matter or thing whatsoever and shall not be
considered satisfied by any intermediate payment or satisfaction of
all or any of the obligations of the Borrower under this Agreement and
shall continue in full force and effect until final payment in full of
all amounts owing by the Borrower hereunder and total satisfaction of
all the Borrower's actual and contingent obligations hereunder.
16.5 Obligations not Discharged Neither the obligations of the
Guarantors contained in this Clause 16 (Guarantee and Indemnity) nor
the rights, powers and remedies conferred in respect of the Guarantors
upon the Agents, the Arranger and the Banks or any of them by this
Agreement or by law shall be discharged, impaired or otherwise
affected by:
(a) the winding-up, dissolution, administration or re-organisation
of the Borrower or any other Guarantor or any other
person or any change in its status, function,
control or ownership;
(b) any of the obligations of the Borrower or any other Guarantor
or any other person hereunder or under any other
security taken in respect of any of its obligations
hereunder being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
60
(c) time or other indulgence being granted or agreed to be granted
to the Borrower or any other Guarantor in respect of
its obligations hereunder or under any such other
security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the Borrower or any other Guarantor
hereunder or under any such other security;
(e) any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken
in respect of the Borrower's or any other
Guarantor's obligations hereunder;
(f) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of,
any security taken in respect of the Borrower's or
any other Guarantor's obligations hereunder; or
(g) any other act, event or omission which, but for this Clause
16.5 (Obligations not Discharged), might operate to
discharge, impair or otherwise affect any of the
obligations of the Guarantors herein contained or
any of the rights, powers or remedies conferred upon
the Agents, the Arranger and the Banks or any of
them by this Agreement or by law.
16.6 Settlement Conditional Any settlement or discharge between the
Guarantors and the Agents, the Arranger and the Banks or any of them
shall be conditional upon no security or payment to the Agents, the
Arranger and the Banks or any of them by the Borrower or any other
person on behalf of the Borrower being avoided or reduced by virtue of
any provisions or enactments relating to bankruptcy, insolvency,
liquidation or similar laws of general application for the time being
in force and, if any such security or payment is so avoided or
reduced, the Agents, the Arranger and the Banks shall each be entitled
to recover the value or amount of such security or payment from the
Guarantors subsequently as if such settlement or discharge had not
occurred.
16.7 Exercise of Rights Neither the Agents, the Arranger and the Banks
nor any of them shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of the Guarantors by
this Agreement or by law:
(a) to make any demand of the Borrower or any Guarantor;
(b) to take any action or obtain judgment in any court against the
Borrower or any Guarantor;
(c) to make or file any claim or proof in a winding-up or
dissolution of the Borrower or any Guarantor; or
(d) to enforce or seek to enforce any other security taken in
respect of any of the obligations of the
Borrower hereunder.
16.8 Deferral of Guarantor's Rights Each Guarantor agrees that, so
long as any amounts are or may be owed by the Borrower hereunder or
the Borrower is under any actual or contingent obligations hereunder
such Guarantor shall not exercise, any rights
61
which it may at any time have by reason of performance by it of its
obligations hereunder:
(i) to be indemnified by the Borrower; and/or
(ii) to claim any contribution from any other guarantor of the
Borrower's obligations hereunder; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the
Agents, the Arranger and the Banks hereunder or of
any other security taken pursuant to, or in
connection with, this Agreement or the benefit of
any monies held, received or receivable by all or
any of the Agents, the Arranger and the Banks.
16.9 Suspense Accounts All moneys received, recovered or realised by a
Bank by virtue of Clause 16.1 (Guarantee) or Clause 16.2 (Indemnity)
may, in that Bank's discretion, be credited to a suspense account
(bearing a competitive interest rate) and may be held in such account
for so long as such Bank thinks fit pending the application from time
to time (as such Bank may think fit) of such moneys in or towards the
payment and discharge of any amounts owing by the Borrower to such
Bank hereunder provided that such Bank will apply such moneys in
payment and discharge of amounts owing by the Borrower to such Bank
forthwith in the event that such moneys are of an amount equal to or
greater than all the amounts owing by the Borrower, the Guarantors and
each of them under each of the Facility Documents.
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PART 8
DEFAULT INTEREST AND INDEMNITY
17. Default Interest and Indemnity
17.1 Default Interest Periods If any sum due and payable by the
Borrower or a Guarantor under any Facility Document is not paid on the
due date therefor in accordance with the provisions of Clause 19
(Payments) or if any sum due and payable by the Borrower or a
Guarantor under any judgment of any court in connection therewith is
not paid on the date of such judgment, the period beginning on such
due date or, as the case may be, the date of such judgment and ending
on the date upon which the obligation of the Borrower or such
Guarantor to pay such sum (the balance thereof for the time being
unpaid being herein referred to as an "unpaid sum") is discharged
shall be divided into successive periods, each of which (other than
the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided
in this Clause 17) be selected by the Facility Agent.
17.2 Default Interest During each such period relating thereto as is
mentioned in Clause 17.1 (Default Interest Periods) an unpaid sum
shall bear interest at the rate per annum which is the sum from time
to time of two per cent., the Applicable Margin at such time and LIBOR
on the Quotation Date therefor Provided that:
(a) if, for any such period, LIBOR cannot be determined,
the rate of interest applicable to such unpaid sum
shall be the rate per annum which is the sum of two
per cent., the Applicable Margin at such time and
the rate per annum determined by the Facility Agent
to be equal to the arithmetic mean (rounded upwards,
if not already such a multiple, to the nearest whole
multiple of one-sixteenth of one per cent.) of the
rates notified by each of the Reference Banks to the
Facility Agent before the last day of such period to
be those which express as a percentage rate per
annum the cost to it of funding from whatever
sources it may select its portion of such unpaid sum
for such period; and
(b) if such unpaid sum is all or part of an Advance which becomes
due and payable on a day other than the last day of
the Term thereof, the first such period applicable
thereto shall be of a duration equal to the
unexpired portion of that Term and the rate of
interest applicable thereto from time to time during
such period shall be that which exceeds by two per
cent. the rate which would have been applicable to
it had it not so fallen due.
17.3 Payment of Default Interest Any interest which shall have accrued
under Clause 17.2 (Default Interest) in respect of an unpaid sum shall
be due and payable and shall be paid by the Borrower at the end of the
period by reference to which it is calculated.
17.4 Broken Periods If any Bank or the Facility Agent on its behalf
receives or recovers all or any part of such Bank's share of an
Advance otherwise than on the last day of the Term thereof, the
Borrower shall pay to the Facility Agent on demand for
63
account of such Bank an amount equal to the amount of any resulting
loss or expense incurred by such Bank including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits
from third parties (but excluding any loss of margin) Provided that
such Bank shall have delivered to the Borrower a certificate as to
the amount of such loss or expense and setting forth in reasonable
detail the calculation thereof.
17.5 Borrowers' Indemnity The Borrower undertakes to indemnify:
(a) each of the Agents, the Arranger and the Banks against any
cost, claim, loss, expense (including legal fees) or
liability together with any VAT thereon, which any
of them may sustain or incur as a consequence of the
occurrence of any Event of Default or Review Event
or any default by any Obligor in the performance of
any of the obligations expressed to be assumed by it
in any Facility Document; and
(b) each Bank against any loss it may suffer or incur as a result
of its funding or making arrangements to fund its
portion of an Advance requested by the Borrower
hereunder but not made by reason of the operation of
any one or more of the provisions hereof (other than
default by, or gross negligence of, a Bank or an
Agent).
17.6 Unpaid Sums as Advances Any unpaid sum shall (for the purposes of
this Clause 17 (Default Interest and Indemnity) and Clause 10.1
(Increased Costs)) be treated as an advance and accordingly in this
Clause 17 (Default Interest and Indemnity) and Clause 10.1 (Increased
Costs) the term "Advance" includes any unpaid sum and "Term", in
relation to an unpaid sum, includes each such period relating thereto
as is mentioned in Clause 17.1 (Default Interest Periods).
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PART 9
PAYMENTS
18. Currency of Account and Payment
18.1 Currency of Account The dollar is the currency of account and
payment for each and every sum at any time due from the Borrower or
any Guarantor under the Facility Documents Provided that:
(a) each payment in respect of costs and expenses shall be made
in the currency in which the same were incurred; and
(b) each payment pursuant to Clause 8.2 (Tax Indemnity) or Clause
10.1 (Increased Costs) shall be made in the currency
specified by the party claiming thereunder.
18.2 Currency Indemnity If any sum due from the Borrower or a
Guarantor under any Facility Document or any order or judgment given
or made in relation hereto has to be converted from the currency (the
"first currency") in which the same is payable thereunder or under
such order or judgment into another currency (the "second currency")
for the purpose of (a) making or filing a claim or proof against the
Borrower or such Guarantor, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given
or made in relation hereto, the Borrower or such Guarantor shall
indemnify and hold harmless each of the persons to whom such sum is
due from and against any loss suffered or incurred as a result of any
discrepancy between (i) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which such person
may in the ordinary course of business purchase the first currency
with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim
or proof Provided that if such conversion from the first currency into
the second currency results in a windfall for any person indemnified
by the Borrower or a Guarantor by this Clause 18.2 (Currency
Indemnity), such person shall pay such windfall to the Borrower or
such Guarantor.
19. Payments
19.1 Payments to the Facility Agent On each date on which this
Agreement requires an amount denominated in dollars to be paid by the
Borrower or a Guarantor or any of the Banks hereunder, the Borrower or
such Guarantor, or, as the case may be, such Bank shall make the same
available to the Facility Agent by payment in dollars and in same day
funds (or in such other funds as may for the time being be customary
in New York City for the settlement in New York City of international
banking transactions in dollars) to the Facility Agent's account
number 001.1.643.293 SWIFT number: ▇▇▇▇ US33, reference
CBSA/HE.03.06/CME with Chase Manhattan Bank, New York, N.Y. (or such
other account or bank as the Facility Agent may have specified for
this purpose).
19.2 Alternative Payment Arrangements If, at any time, it shall become
impracticable (by reason of any action of any governmental authority
or any change in
65
law, exchange control regulations or any similar event) for the
Borrower or a Guarantor to make any payment hereunder in the manner
specified in Clause 19.1 (Payments to the Facility Agent), then the
Borrower or such Guarantor may agree with each or any of the Banks
alternative arrangements for the payment direct to such Bank of
amounts due to such Bank hereunder Provided that, in the absence of
any such agreement with any Bank, the Borrower or such Guarantor
shall be obliged to make all payments due to such Bank in the manner
specified herein. Upon reaching such agreement the Borrower or such
Guarantor and such Bank shall immediately notify the Facility Agent
thereof and shall thereafter promptly notify the Facility Agent of
all payments made direct to such Bank.
19.3 Payments by the Facility Agent Save as otherwise provided herein,
each payment received by the Facility Agent for the account of another
person pursuant to Clause 19.1 (Payments to the Facility Agent) shall:
(a) in the case of a payment received for the account of the
Borrower, be made available by the Facility Agent to
the Borrower by application:
(i) first, in or towards payment the same day of any
amount then due from the Borrower
hereunder to the person from whom the
amount was so received; and
(ii) secondly, in or towards payment the same day to such
account of CME B.V. with such bank in
New York City as CME B.V. shall have
previously notified to the Facility Agent
for this purpose; and
(b) in the case of any other payment, be made available by the
Facility Agent to the person for whose account such
payment was received (in the case of a Bank, for the
account of the Facility Office) for value the same
day by transfer to such account of such person with
such bank in New York City as such person shall have
previously notified to the Facility Agent.
19.4 No Set-off All payments required to be made by the Borrower or a
Guarantor hereunder shall be calculated without reference to any
set-off or counterclaim and shall be made free and clear of and
without any deduction for or on account of any set-off or
counterclaim.
19.5 Clawback Where a sum is to be paid hereunder to the Facility
Agent for account of another person, the Facility Agent shall not be
obliged to make the same available to that other person until it has
been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that
it had not actually received such sum, then the person to whom such
sum was so made available shall on request refund the same to the
Facility Agent together with an amount sufficient to indemnify the
Facility Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out such sum prior to its having
received such sum.
66
20. Set-Off
20.1 Contractual Set-off On or after the occurrence of an Event of
Default or Review Event which is continuing, the Borrower and each
Guarantor authorises each Bank to apply any credit balance to which
the Borrower or such Guarantor is entitled on any account of the
Borrower or such Guarantor with that Bank in satisfaction of any sum
due and payable from the Borrower or such Guarantor to such Bank under
any Facility Document but unpaid; for this purpose, each Bank is
authorised to purchase with the moneys standing to the credit of any
such account such other currencies as may be necessary to effect such
application.
20.2 Set-off not Mandatory No Bank shall be obliged to exercise any
right given to it by Clause 20.1 (Contractual Set-off).
21. Sharing
21.1 Redistribution of Payments If, at any time, the proportion which
any Bank (a "Recovering Bank") has received or recovered (whether by
payment, the exercise of a right of set-off or combination of accounts
or otherwise) in respect of its portion of any payment (a "relevant
payment") to be made under this Agreement by the Borrower for account
of such Recovering Bank and one or more other Banks is greater (the
portion of such receipt or recovery giving rise to such excess
proportion being herein called an "excess amount") than the proportion
thereof so received or recovered by the Bank or Banks so receiving or
recovering the smallest proportion thereof, then:
(a) such Recovering Bank shall inform the Facility Agent of such
receipt or recovery and pay to the Facility
Agent an amount equal to such excess amount;
(b) there shall thereupon fall due from the Borrower to such
Recovering Bank an amount equal to the amount
paid out by such Recovering Bank pursuant to
paragraph (a) above, the amount so due being, for
the purposes hereof, treated as if it were an unpaid
part of such Recovering Bank's portion of such
relevant payment; and
(c) the Facility Agent shall treat the amount received by it from
such Recovering Bank pursuant to paragraph (a) above
as if such amount had been received by it from the
Borrower in respect of such relevant payment and
shall pay the same to the persons entitled thereto
(including such Recovering Bank) pro rata to their
respective entitlements thereto,
Provided that to the extent that any excess amount is attributable to
a payment to a Bank pursuant to paragraph (a)(i) of Clause 19.3
(Payments by the Facility Agent) such portion of such excess amount as
is so attributable shall not be required to be shared pursuant hereto.
21.2 Repayable Recoveries If any sum (a "relevant sum") received or
recovered by a Recovering Bank in respect of any amount owing to it by
the Borrower under the Facility Agreement becomes repayable and is
repaid by such Recovering Bank, then:
67
(a) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 21.1
(Redistribution of Payments) shall, upon request of
the Facility Agent, pay to the Facility Agent for
account of such Recovering Bank an amount equal to
its share of such relevant sum; and
(b) there shall thereupon fall due from the Borrower to each such
Bank an amount equal to the amount paid out by it
pursuant to paragraph (a) above, the amount so due
being, for the purposes hereof, treated as if it
were the sum payable to such Bank against which such
Bank's share of such relevant sum was applied.
68
PART 10
FEES, COSTS AND EXPENSES
22. Commitment Commission and Fees
22.1 Commitment Commission The Borrower shall pay to the Facility
Agent for account of each Bank a commitment commission on the amount
of such Bank's Available Commitment from day to day during the period
beginning on the date hereof and ending on the day one month before
the Final Maturity Date, such commitment commission to be calculated
at the rate of 0.75 per cent. per annum and payable in arrear on the
last day of each successive period of three months which ends during
such period, on the date on which any prepayment of all of a Bank's
share of the Loan is made hereunder (but only to the extent of such
Bank's share of such commitment commission) and on the Final Maturity
Date.
22.2 Fees The Borrower shall pay to the Arranger the fees specified in
the letter dated on or at about the date hereof from the Arranger to
the Borrower at the times, and in the amounts, specified in such
letter.
22.3 Agency Fee The Borrower shall pay to the Facility Agent for its
own account the agency fees specified in the letter dated on or at
about the date hereof from the Facility Agent to the Borrower at the
times, and in the amounts, specified in such letter.
23. Costs and Expenses
23.1 Transaction Expenses The Borrower shall, from time to time on
demand of the Facility Agent, reimburse the Agents and Arranger for
all its reasonable out-of-pocket costs and expenses (including legal
fees and fees and costs of any consultant (technical or otherwise))
together with any VAT thereon incurred by it in connection with any
due diligence required in connection with this Facility (whether
before or after execution thereof), the negotiation, preparation and
execution of each of the Facility Documents and the completion of the
transactions therein contemplated Provided that the Arranger and
Agents shall consult with the Borrower before incurring costs and
expenses which in aggregate exceed $30,000.
23.2 Preservation and Enforcement of Rights The Borrower shall, from
time to time on demand of the Facility Agent, reimburse the Agents and
Arranger and the Banks for all costs and expenses (including legal
fees and the fees and costs of any consultant (technical or
otherwise)) together with any VAT thereon incurred in or in connection
with the preservation and/or enforcement of any of the rights of the
Agents, the Arranger and the Banks under any of the Facility
Documents. Each of the Agents and the Banks shall, unless an Event of
Default or Review Event has occurred and is continuing, consult with
CME Ltd. before incurring costs under this Clause 23.2 (Preservation
and Enforcement of Rights) which would, when aggregated with all other
such costs incurred by such Agent or such Bank in any calender year,
exceed $10,000.
23.3 Stamp Taxes The Borrower shall pay all stamp, registration and
other taxes to which any of the Facility Documents or any judgment
given in connection therewith is or at any time may be subject and
shall, from time to time on demand of the Facility
69
Agent, indemnify the Agents, the Arranger and the Banks against any
liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such tax.
23.4 Banks' Liabilities for Costs If the Borrower fails to perform any
of its obligations under this Clause 23 (Costs and Expenses), each
Bank shall, in its Proportion, indemnify the Agents and Arranger
against any loss incurred by any of them as a result of such failure
and the Borrower shall forthwith reimburse each Bank for any payment
made by them pursuant to this Clause 23.5 (Banks' Liabilities for
Costs).
70
PART 11
AGENCY PROVISIONS
24. The Agents, the Arranger and the Banks
24.1 Appointment of the Facility Agent The Arranger and each Bank
hereby appoints each of the Agents to act as its agent in connection
with the Facility Documents and authorises such Agent to exercise such
rights, powers, authorities and discretions as are specifically
delegated to such Agent by the terms of the Facility Documents
together with all such rights, powers, authorities and discretions as
are reasonably incidental thereto.
24.2 Agents' Discretions Each of the Agents may:
(a) assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party
hereto, that (i) any representation made by the
Borrower or any Guarantor in connection with the
Facility Documents is true, (ii) no Event of
Default, Review Event or Potential Event has
occurred, (iii) none of the Obligors is in breach of
or default under its obligations under any Facility
Document and (iv) any right, power, authority or
discretion vested under the Facility Documents upon
an Instructing Group, the Banks or any other person
or group of persons has not been exercised;
(b) assume that the Facility Office of each Bank is that
identified with its signature below (or, in the case
of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee)
until it has received from such Bank a notice
designating some other office of such Bank to
replace its Facility Office and act upon any such
notice until the same is superseded by a further
such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice
or services may to it seem necessary, expedient or
desirable and rely upon any advice so obtained;
(d) rely as to any matters of fact which might
reasonably be expected to be within the knowledge of
any Obligor upon a certificate signed by or on
behalf of such Obligor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested
in it as agent under the Facility Documents unless
and until instructed by an Instructing Group as to
whether or not such right, power or discretion is to
be exercised and, if it is to be exercised, as to
the manner in which it should be exercised;
(g) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or
proceeding arising out of or in connection with any
Facility Document until it shall have received such
security as it may require (whether by way of
payment in advance or otherwise)
71
for all costs, claims, losses, expenses (including
legal fees) and liabilities together with any VAT
thereon which it will or may expend or incur in
complying with such instructions; and
(h) refrain from doing anything which would or might in its
opinion be contrary to any relevant law of any
jurisdiction or any relevant directive or regulation
of any agency or of any state or which would or
might otherwise render it liable to any person, and
may do anything which is, in its opinion, necessary
to comply with any such law, directive or
regulation.
24.3 Agents' Obligations Each of the Agents shall:
(a) promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent
from an Obligor under any Facility Document;
(b) promptly notify each Bank of the occurrence of any Event of
Default or Review Event or any default by an Obligor
in the due performance of or compliance with its
obligations under any Facility Document of which the
Facility Agent has notice from any other party
hereto;
(c) save as otherwise provided herein, act as agent under the
Facility Documents in accordance with any
instructions given to it by an Instructing Group,
which instructions shall be binding on the other
Agent, the Arranger and the Banks; and
(d) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in
it as agent under the Facility Documents.
24.4 Agents' Excluded Obligations Notwithstanding anything to the
contrary expressed or implied herein, none of the Agents and the
Arranger shall:
(a) be bound to enquire as to (i) whether or not any
representation made by an Obligor in connection with
any Facility Document is true, (ii) the occurrence
or otherwise of any Event of Default, Review Event
or Potential Event, (iii) the performance by an
Obligor of its obligations under any Facility
Document or (iv) any breach of or default by an
Obligor of or under its obligations under any
Facility Document;
(b) be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own
account;
(c) be bound to disclose to any other person any information
relating to any member of the Group if such
disclosure would or might in its opinion constitute
a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(d) be under any obligations other than those for which express
provision is made herein.
72
24.5 Indemnification Each Bank shall, in its Proportion, from time to
time on demand by either Agent indemnify such Agent against any and
all costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which such Agent may incur,
otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in its capacity as agent under the Facility
Documents.
24.6 Exclusion of Liabilities Neither the Agents and the Arranger nor
any of them accepts any responsibility for the accuracy and/or
completeness of the Information Memorandum or any other information
supplied by any member of the Group in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability of any
Facility Document and neither the Agents and the Arranger nor any of
them shall be under any liability as a result of taking or omitting to
take any action in relation to any Facility Document, save in the case
of gross negligence or wilful misconduct.
24.7 No Actions Each of the Banks agrees that it will not assert or
seek to assert against any director, officer or employee of either of
the Agents or any Arranger any claim it might have against any of them
in respect of the matters referred to in Clause 24.6 (Exclusion of
Liabilities).
24.8 Business with the Group The Agents, the Arranger and each of
their respective Affiliates falling within paragraph (a) of the
definition thereof may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
24.9 Resignation Each of the Agents may resign its appointment
hereunder at any time without assigning any reason therefor by giving
not less than thirty days' prior written notice of such resignation
and its resignation under the Security Agency Agreement to each of the
other parties hereto and to the Security Agency Agreement Provided
that no such resignation shall be effective until a successor for such
Agent is appointed hereunder and under the Security Agency Agreement
in accordance with the succeeding provisions of this Clause 24 (The
Agents, the Arranger and the Banks).
24.10 Successor Agent If either of the Agents gives notice of its
resignation hereunder pursuant to Clause 24.9 (Resignation), then any
reputable and experienced bank or other financial institution may be
appointed as a successor to such Agent both hereunder and under the
Security Agency Agreement by an Instructing Group (with the prior
written consent of CME Ltd., such consent not to be unreasonably
withheld or delayed) during the period of such notice but, if no such
successor is so appointed, such Agent may appoint such a successor
itself. Such appointment shall take effect upon:
(a) (in the case of the Security Agent) all of the Security and
title to the Security and all of the Security
Agent's rights, benefits and obligations under the
Facility Documents having been validly transferred
to such successor; and
(b) such successor having confirmed its agreement to be bound by
the provisions of this Agreement, the Security
Agency Agreement and all other related agreements to
which the such Agent is a party and having executed
and delivered to the Security Agent or outgoing
Security Agent (and such Security Agent having
countersigned) an Accession Undertaking
73
substantially in the form set out in the Schedule to
the Security Agency Agreement.
24.11 Rights and Obligations If a successor to either of the Agents is
appointed under the provisions of Clause 24.10 (Successor Agent), then
(a) the retiring Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions
of this Clause 24 (The Facility Agent, the Arranger and the Banks) and
(b) its successor and each of the other parties to the Facility
Documents shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party
hereto.
24.12 Own Responsibility It is understood and agreed by each Bank that
it has itself been, and will continue to be, solely responsible for
making its own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs, status and
nature of each member of the Group and, accordingly, each Bank
warrants to each of the Agents and the Arranger that it has not relied
on and will not hereafter rely on the Agents and the Arranger or any
of them:
(a) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided
by any member of the Group in connection with the
Facility Documents or the transactions therein
contemplated (whether or not such information has
been or is hereafter circulated to such Bank by the
Agents and the Arranger or any of them); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs,
status or nature of any member of the Group.
24.13 Agency Division Separate In acting as agent hereunder for the
Banks, each of the Agents shall be regarded as acting through its
agency division which shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the
foregoing provisions of this Clause 24 (The Facility Agent, the
Arranger and the Banks), any information received by some other
division or department of such Agent may be treated as confidential
and shall not be regarded as having been given to such Agent's agency
division.
24.14 Confidential Information Notwithstanding anything to the
contrary expressed or implied herein and without prejudice to the
provisions of Clause 24.13 (Agency Division Separate), each of the
Agents shall not as between itself and the Banks be bound to disclose
to any Bank or other person any information which is supplied by any
member of the Group to such Agent in its capacity as agent hereunder
for the Banks and which is identified by such member of the Group at
the time it is so supplied as being confidential information Provided
that the consent of the relevant member of the Group to such
disclosure shall not be required in relation to any information which
in the opinion of such Agent relates to an Event of Default, Review
Event or Potential Event or in respect of which the Banks have given a
confidentiality undertaking in a form satisfactory to such Agent and
the relevant member of the Group.
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PART 12
ASSIGNMENTS AND TRANSFERS
25. Assignments and Transfers
25.1 Binding Agreement This Agreement shall be binding upon and enure
to the benefit of each party hereto and its or any subsequent
successors, Transferees and assigns.
25.2 No Assignments and Transfers by the Borrower or Guarantors None
of the Borrower and the Guarantors shall be entitled to assign or
transfer all or any of its rights, benefits and obligations hereunder.
25.3 Assignments and Transfers by Banks Any Bank may, at any time (a)
assign or transfer (in accordance with Clause 25.5 (Transfers by
Banks) in the case of a transfer) all or any of its rights, benefits
and obligations hereunder to any holding company of it or to any
subsidiary of any holding company of it or (b) with the prior consent
of CME Ltd., such consent not to be unreasonably withheld or delayed,
assign to any other financial institution all or any of its rights and
benefits hereunder or transfer in accordance with Clause 25.5
(Transfers by Banks) to any other bank all or any of its rights,
benefits and obligations hereunder Provided that no such assignment or
transfer shall be permitted under (a) or (b) above if such assignment
or transfer (i) shall be in relation to an aggregate principal amount
of less than $1,000,000 or (ii) would require, in the reasonable
opinion of CME Ltd., CME Ltd. to file a registration statement with
the Securities and Exchange Commission.
25.4 Assignments by Banks If any Bank assigns all or any of its rights
and benefits hereunder in accordance with Clause 25.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has agreed
with the Agents, the Arranger, the Borrower and the other Banks that
it shall be under the same obligations towards each of them as it
would have been under if it had been an original party hereto as a
Bank and has become a party to the Security Agency Agreement as a Bank
(whereupon such assignee shall become a party hereto as a "Bank"), the
Agents, the Arranger, the Borrower and the other Banks shall not be
obliged to recognise such assignee as having the rights against each
of them which it would have had if it had been such a party hereto.
25.5 Transfers by Banks If any Bank wishes to transfer all or any of
its rights, benefits and/or obligations hereunder as contemplated in
Clause 25.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Facility Agent of a duly
completed and duly executed Transfer Certificate in which event, on
the later of the Transfer Date specified in such Transfer Certificate
and the fifth business day after (or such earlier business day
endorsed by the Facility Agent on such Transfer Certificate falling on
or after) the date of delivery to the Facility Agent of such Transfer
Certificate and an Accession Undertaking substantially in the form set
out in the Schedule to the Security Agency Agreement duly completed
and duly executed by the relevant transferor and transferee and
countersigned by the Security Agent:
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and
obligations hereunder, the Borrower, the Guarantors
and such Bank shall be released from further
obligations
75
towards one another hereunder and their respective
rights against one another shall be cancelled (such
rights and obligations being referred to in this
Clause 25.5 (Transfers by Banks) as "discharged
rights and obligations");
(b) the Borrower, the Guarantors and the Transferee party thereto
shall assume obligations towards one another and/or
acquire rights against one another which differ from
such discharged rights and obligations only insofar
as the Borrower, the Guarantors and such Transferee
have assumed and/or acquired the same in place of
the Borrower, the Guarantors and such Bank;
(c) the Agents, the Arranger, such Transferee and the other Banks
shall acquire the same rights and benefits and
assume the same obligations between themselves as
they would have acquired and assumed had such
Transferee been an original party hereto as a Bank
with the rights, benefits and/or obligations
acquired or assumed by it as a result of such
transfer; and
(d) such Transferee shall become a party hereto as a "Bank".
25.6 Transfer Fees On the date upon which a transfer takes effect
pursuant to Clause 25.5 (Transfers by Banks) the Transferee in respect
of such transfer shall pay to the Facility Agent for its own account a
transfer fee of $1000.
25.7 Disclosure of Information Subject to the signature of a
Confidentiality Agreement, any Bank may disclose to any actual or
potential assignee or Transferee or to any person who may otherwise
enter into contractual relations with such Bank in relation to this
Agreement such information about the Borrower and the Group as such
Bank shall consider appropriate.
25.8 Increased Costs, etc. If, at any time, any Bank assigns or
transfers any of its rights, benefits and obligations hereunder or
changes its Facility Office and, at the time of such assignment,
transfer or change (as the case may be) there arises an obligation on
the part of the Borrower under Clause 8 (Taxes) or Clause 10 (Changes
in Circumstances) to pay to such Bank or its assignee or transferee or
to any fiscal authority or other person any amount in excess of the
amount it would have then been obliged to pay but for such assignment,
transfer or change (as the case may be), then the Borrower shall not
be obliged to pay the amount of such excess Provided that this Clause
25.8 (Increased Costs, etc.) shall not apply in the case of any
assignment, transfer or change (as the case may be) made at the
request of the Borrower.
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PART 13
MISCELLANEOUS
26. Calculations and Evidence of Debt
26.1 Basis of Accrual Interest and commitment commission shall accrue
from day to day and shall be calculated on the basis of a year of 360
days (or, in any case where market practice differs, in accordance
with market practice) and the actual number of days elapsed.
26.2 Quotations If on any occasion a Reference Bank or Bank fails to
supply the Facility Agent with a quotation required of it under the
foregoing provisions of this Agreement, the rate for which such
quotation was required shall be determined from those quotations which
are supplied to the Facility Agent.
26.3 Evidence of Debt Each Bank shall maintain in accordance with its
usual practice accounts evidencing the amounts from time to time lent
by and owing to it hereunder.
26.4 Control Accounts The Facility Agent shall maintain on its books a
control account or accounts in which shall be recorded (a) the amount
of any Advance made or arising hereunder and each Bank's share
therein, (b) the amount of all principal, interest and other sums due
or to become due from the Borrower to any of the Banks hereunder and
each Bank's share therein and (c) the amount of any sum received or
recovered by the Facility Agent hereunder and each Bank's share
therein.
26.5 Prima Facie Evidence In any legal action or proceeding arising
out of or in connection with this Agreement, the entries made in the
accounts maintained pursuant to Clause 26.3 (Evidence of Debt) and
Clause 26.4 (Control Accounts) shall be prima facie evidence of the
existence and amounts of the specified obligations of the Borrower.
26.6 Certificates of Banks A certificate of a Bank as to (a) the
amount by which a sum payable to it hereunder is to be increased under
Clause 8.1 (Tax Gross-up) or (b) the amount for the time being
required to indemnify it against any such cost, payment or liability
as is mentioned in Clause 8.2 (Tax Indemnity), Clause 10.1 (Increased
Costs) or Clause 17.4 (Broken Periods) shall, in the absence of
manifest error, be prima facie evidence of the existence and amounts
of the specified obligations of the Borrower.
27. Remedies and Waivers, Partial Invalidity
27.1 Remedies and Waivers No failure to exercise, nor any delay in
exercising, on the part of the Agents, the Arranger and the Banks or
any of them, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise
of any other right or remedy. The rights and remedies herein provided
are cumulative and not exclusive of any rights or remedies provided by
law.
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27.2 Partial Invalidity If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
28. Notices
28.1 Communications in Writing Each communication to be made hereunder
shall be made in writing and, unless otherwise stated, shall be made
by telex, letter or fax.
28.2 Delivery Any communication or document to be made or delivered by
one person to another pursuant to this Agreement shall (unless that
other person has by fifteen days' written notice to the Facility Agent
specified another address) be made or delivered to that other person
at the address identified with its signature below (or, in the case of
a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) and shall be deemed to have been made or
delivered when despatched (in the case of any communication made by
fax or telex) or (in the case of any communication made by letter)
when left at that address or (as the case may be) ten days after being
deposited in the post postage prepaid in an envelope addressed to it
at that address Provided that any communication or document to be made
or delivered to an Agent shall be effective only when received by such
Agent and then only if the same is expressly marked for the attention
of the department or officer identified with such Agent's signature
below (or such other department or officer as such Agent shall from
time to time specify for this purpose).
28.3 English Language Each communication and document made or
delivered by one party to another pursuant to this Agreement shall be
in the English language or accompanied by a translation thereof into
English certified (by an officer of the person making or delivering
the same) as being a true and accurate translation thereof.
29. Amendments
29.1 Amendment Procedures The Facility Agent shall, if it has the
prior written consent of an Instructing Group and the Borrower, from
time to time agree in writing to amend this Agreement or to waive,
prospectively or retrospectively, any of the requirements of this
Agreement and any amendments or waivers so agreed shall be binding on
all the Banks, the Arranger, the Borrower and the Guarantors Provided
that:
(a) no such waiver or amendment shall subject any party hereto to
any new or additional obligations without the
consent of such party;
(b) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(i) amend or waive any provision of Clause 21 (Sharing)
or this Clause 29 (Amendments);
(ii) reduce the proportion of any amount received or
recovered (whether by
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way of set-off, combination of accounts or
otherwise) in respect of any amount due
from the Borrower hereunder to which any
Bank is entitled;
(iii) change the principal amount of or currency of any
Advance, or defer the term of the
Facility or the Term of any Advance;
(iv) change the Applicable Margin, change the amount or
currency or defer the date for any payment
of interest, fees or any other amount
payable hereunder to all or any of the
Agents, the Arranger and the Banks;
(v) amend the definition of Instructing Group; or
(vi) amend any provision which contemplates the need for
the consent or approval of all the Banks;
and
(c) notwithstanding any other provisions hereof, the Facility
Agent shall not be obliged to agree to any
such amendment or waiver if the same would:
(i) amend or waive any provision of this Clause 29
(Amendments), Clause 23 (Costs and Expenses)
or Part 10 (Agency Provisions); or
(ii) otherwise amend or waive any of the Agents' rights
hereunder or subject either Agent or the
Arranger to any additional obligations
hereunder.
29.2 Amendment Costs If the Borrower or any Guarantor requests any
amendment or waiver in accordance with Clause 29.1 (Amendment
Procedures) then the Borrower shall, on demand of the Facility Agent,
reimburse the Agents, the Arranger and the Banks for all reasonable
costs and expenses (including legal fees) together with any VAT
thereon incurred by the Agents, the Arranger and the Banks and each of
them in responding to or complying with such request.
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PART 14
LAW AND JURISDICTION
30. Law and Jurisdiction
30.1 English Law This Agreement shall be governed by, and shall be
construed in accordance with, English law.
30.2 English Courts Each of the parties hereto irrevocably agrees for
the benefit of each of the Agents, the Arranger and the Banks that the
courts of England shall have jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement (respectively
"Proceedings" and "Disputes") and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
30.3 New York Courts Each of the Borrower and the Guarantors
irrevocably agrees that the courts of the State of New York and the
courts of the United States of America, in each case sitting in the
County of New York, shall have jurisdiction to hear and determine any
Proceedings and to settle any Disputes and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
30.4 Appropriate Forum Each of the Borrower and the Guarantors
irrevocably waives any objection which it might now or hereafter have
to the courts referred to in Clause 30.2 (English Courts) and Clause
30.3 (Courts in New York) being nominated as the forum to hear and
determine any Proceedings and to settle any Disputes and agree not to
claim that any such court is not a convenient or appropriate forum.
30.5 Service of Process Each of the Borrower and the Guarantors agrees
that the process by which any Proceedings are begun may be served on
it by being delivered (a) in connection with any Proceedings in
England, to CME Development Corporation at ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ or other its registered office for the time being and
(b) in connection with any Proceedings in New York, to CT Corporation
Systems at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ or other its
principal place of business in New York for the time being. If the
appointment of either of the persons mentioned in this Clause 30.5
(Service of Process) ceases to be effective the Borrower or such
Guarantor shall immediately appoint a further person in England or, as
the case may be, New York to accept service of process on its behalf
in England or, as the case may be, New York and, failing such
appointment within 15 days, the Facility Agent shall be entitled to
appoint such a person by notice to the Borrower or such Guarantor.
Nothing contained herein shall affect the right to serve process in
any other manner permitted by law.
30.6 Non-exclusive Submissions The submission to the jurisdiction of
the courts referred to in Clause 30.2 (English Courts) and Clause 30.3
(Courts in New York) shall not (and shall not be construed so as to)
limit the right of the Agents, the Arranger and the Banks or any of
them to take Proceedings against the Borrower or any Guarantor in any
other court of competent jurisdiction nor shall the taking of
Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if
and to the extent permitted by applicable law.
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30.7 Consent to Enforcement Each of the Borrower and the Guarantors
hereby consents generally in respect of any Proceedings to the giving
of any relief or the issue of any process in connection with such
Proceedings including the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such Proceedings.
30.8 Waiver of Immunity To the extent that the Borrower or any
Guarantor may in any jurisdiction claim for itself or its assets
immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process and to
the extent that in any such jurisdiction there may be attributed to
themselves or their assets such immunity (whether or not claimed),
each of the Borrower and Guarantors hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the full extent
permitted by the laws of such jurisdiction and, in particular, to the
intent that in any proceedings taken in New York the foregoing waiver
of immunity shall have effect under and be construed in accordance
with the United States Foreign Sovereign Immunities Act of 1976.
AS WITNESS the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
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THE THIRD SCHEDULE
Conditions Precedent
1. A copy, certified a true copy by a duly authorised officer of CME
Ltd., of the constitutional documents (including but without
limitation amended Articles of Association and the Partnership
Agreement) of each Obligor.
2. A copy, certified a true copy by a duly authorised officer of CME
Ltd., of corporate authorities of each Obligor approving the
execution, delivery and performance of each Facility Document to which
it is expressed to be a party and the terms and conditions thereof and
authorising a named person or persons to sign such Facility Documents
and any documents to be delivered by it pursuant thereto.
3. A certificate of a duly authorised officer of CME Ltd. setting out
the names and signatures of the persons authorised to sign, on behalf
of each Obligor each Facility Document to which it is expressed to be
a party and any documents to be delivered by it pursuant thereto.
4. A copy, certified a true copy by or on behalf of CME Ltd., of each
such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Banks, necessary
to render each of the Facility Documents legal, valid, binding and
enforceable, to make this Agreement admissible in evidence in the
jurisdiction of incorporation of each Obligor and to enable each
Obligor to perform its obligations thereunder.
5. An original executed copy of each Facility Document and a copy,
certified by a duly authorised officer of CME B.V., of the Limited
Recourse Agreement, the CS Loan Agreement, the Nova TV Licence, the
Management Support Agreement, the Network Access Agreement, the
Programming Services Agreement and the Service Agreement
6. Evidence that all fees, costs and expenses due under the Agreement
on or prior to first drawdown have been paid.
7. An opinion of ▇▇▇▇▇▇▇▇ Chance, Prague, the Facility Agent's Czech
counsel satisfactory in form and substance to the Facility Agent and
in substantially the form distributed to the Banks prior to the
signing of this Agreement.
8. A legal opinion of the Facility Agent's Delaware and Bermudian
counsel satisfactory in form and substance to the Facility Agent and
in substantially the form distributed to the Banks prior to the
signing of this Agreement.
9. A legal opinion of the Facility Agent's Netherlands Antilles
counsel satisfactory in form and substance to the Facility Agent and
in substantially the form distributed to the Banks prior to the
signing of this Agreement.
10. A legal opinion of ▇▇▇▇▇▇▇▇ Chance, Amsterdam, the Facility
Agent's Dutch counsel satisfactory in form and substance to the
Facility Agent and in substantially the form distributed to the Banks
prior to the signing of this Agreement.
11. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Facility Agent,
in substantially
82
the form distributed to the Banks prior to the signing of this
Agreement.
12. A copy, certified a true copy by a duly authorised officer of CME
Ltd., of the Original Financial Statements of each Relevant Member of
the Group.
13. A compliance certificate in the form referred to in Clause 12.6
(Requirements as to financial statements) duly signed by a duly
authorised officer of CME Ltd..
14 Evidence of adoption by Czech Republic II, as sole shareholder of
the Borrower of a shareholders' resolution to undertake to amend the
articles of incorporation of the Borrower (i) in order to limit the
operations of the Borrower in accordance herewith and (ii) in
accordance with clause 3.7 of the Borrower Pledge of Shares in order
to allow for a transfer of voting rights to the pledgee thereunder.
15. Confirmation that the irrevocable payment instruction referred to
in Clause 14.23 (Payment Instruction) has been delivered and
countersigned by Nova TV in accordance herewith.
16. Evidence of perfection of all security created pursuant to the
Security Documents and evidence that all filings, registrations and
recordings have been made and all fees payable in connection therewith
have been paid.
17. Evidence that CME Development Corporation has agreed to act as the
agent of the Borrower and the Guarantors for the service of process in
England and that CT Corporation Systems has agreed to act as the agent
of the Borrower and the Guarantors for the service of process in New
York.
18. A Board Resolution of CME Ltd stating that the execution of the
Facility Agreement would not restrict any payments of principal or
interest under the Notes.
19. Proof of registration of the pledge of the shares in the Borrower
in the Borrower's shareholders register, satisfactory in form and
substance to the Facility Agent.
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THE FIFTH SCHEDULE
Applicable Margin Financial Tests
For the purposes of determining the Applicable Margin at any time,
each of the Leverage Ratio of CME Ltd. and the Consolidated Broadcast
Cash Flow Ratio of Nova TV shall be determined by reference to the
most recent set of quarterly or annual financial statements delivered
by CME Ltd. pursuant to Clause 12 (Financial Information) as confirmed
by a compliance certificate duly signed by two duly authorised
officers of CME Ltd.
The Applicable Margin will then be determined by reference to such
ratios in accordance with the table below:
Leverage Ratio of CME Ltd.
Consolidated Broadcast Cash Flow Ratio Nova TV greater than 1.5 1.25 less than 1.5 1.0 less than 1.25 less than 1.0
greater than 0.75 3.75% 3.75% 3.75% 3.75%
0.50 less than 0.75 3.75% 3.75% 3.25% 3.25%
0.25 less than 0.50 3.75% 3.25% 3.25% 2.75%
less than 0.25 3.75% 3.25% 2.75% 2.50%
Any change in the Applicable Margin shall take effect on the date on
which the relevant quarterly or annual financial statements to be
delivered pursuant to Clause 12 (Financial Information) are actually
delivered by CME Ltd. to the Facility Agent Provided that if the
financial statements are not delivered within the time limits
stipulated in Clause 12 (Financial Information) then the Applicable
Margin from the date such financial statements should have been
delivered shall be 3.75%.
In case the figures for the Leverage Ratio of CME Ltd. or the
Consolidated Broadcast Cash Flow Ratio of Nova TV fall within
different ranges set out in the table above the highest range shall be
taken as applicable.
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ B.V.
By:
Address: ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇
The Guarantors
CME CZECH REPUBLIC II B.V.
By:
Address: ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
By:
Address: ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V.
By:
Address: ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇
85
CME MEDIA ENTERPRISES B.V.
By:
Address: ▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇
The Facility Agent and the Security Agent
ING BANK N.V.
By:
Address: CBSA,
HE 03.06
▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attn: The Manager
The Arranger and the Bank
ING BANK N.V.
By:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attn: Manager, Media Finance Group
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