DEED OF AMENDMENT relating to an Intercreditor Agreement dated 21 July 2006 as amended and restated by a Deed of Amendment dated 16 May 2007, by a Deed of Amendment dated 22 August 2007, by a Deed of Amendment dated 10 March 2008, and by a Deed of...
Exhibit
10.17
Execution
Version
DEED
OF AMENDMENT
relating
to an Intercreditor Agreement dated 21 July 2006
as
amended and restated by a Deed of Amendment dated 16 May 2007,
by a Deed
of Amendment dated 22 August 2007,
by a Deed
of Amendment dated 10 March 2008,
and by a
Deed of Amendment dated 17 September 2009.
and
CENTRAL
EUROPEAN MEDIA ENTERPRISES N.V.
and
CME
MEDIA ENTERPRISES B.V.
as
Obligors
and
THE
BANK OF NEW YORK MELLON
(formerly
JPMORGAN CHASE BANK, N.A., LONDON BRANCH)
as 2005
Trustee
and
BNY
CORPORATE TRUSTEE SERVICES LIMITED
and
THE
BANK OF NEW YORK MELLON
(formerly
THE BANK OF NEW YORK)
as 2007
Trustee
and
THE
BANK OF NEW YORK MELLON
(formerly
THE BANK OF NEW YORK)
as 2008
Trustee
and
THE BANK OF NEW YORK
MELLON,
acting
through its London Branch
as 2009
Note Trustee
and
THE
LAW DEBENTURE TRUST CORPORATION p.l.c.
as 2009
Security Trustee
CONTENTS
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
2.
|
RESTATEMENT
OF THE ORIGINAL AGREEMENT
|
2
|
|
3.
|
FURTHER
ASSURANCE
|
2
|
|
4.
|
MISCELLANEOUS
|
2
|
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5.
|
GOVERNING
LAW
|
3
|
|
SCHEDULE
1 RESTATED AGREEMENT
|
1
|
|
THIS DEED is dated 29
September 2009 and made between:
|
(A)
|
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD., a company established under the laws of Bermuda
(the “Company”);
|
|
(B)
|
CENTRAL EUROPEAN MEDIA
ENTERPRISES N.V. a company established under the laws of
Netherlands Antilles (“CME
N.V.”);
|
|
(C)
|
CME MEDIA ENTERPRISES
B.V. a company established under the laws of the Netherlands
(“CME
B.V.”);
|
|
(D)
|
THE BANK OF NEW YORK MELLON
(formerly JPMORGAN
CHASE BANK N.A., LONDON BRANCH) (acting in its
capacity as Trustee and Security Trustee under the 2005 Indenture) (the
“2005
Trustee”);
|
|
(E)
|
BNY CORPORATE TRUSTEE SERVICES
LIMITED acting in its capacity as Trustee and THE BANK OF NEW YORK MELLON
(formerly THE BANK
OF NEW YORK) acting is its capacity as Security Trustee under the
2007 Indenture (together, the “2007
Trustee”);
|
|
(F)
|
THE BANK OF NEW YORK MELLON
(formerly THE BANK
OF NEW YORK) (acting in its capacity as Trustee and Security
Trustee under the 2008 Indenture) (the “2008 Trustee”);
and
|
|
(G)
|
THE BANK OF NEW YORK MELLON,
acting through its London branch (acting in its
capacity as Note Trustee under the 2009 Indenture) and THE LAW DEBENTURE TRUST
CORPORATION p.l.c. (acting in its capacity as Security Trustee
under the 2009 Indenture) (together, where the context permits the “2009
Trustee”).
|
IT IS AGREED as
follows:
|
1.
|
DEFINITIONS AND
INTERPRETATION
|
|
1.1
|
Definitions
|
In this
Deed:
“2005 Indenture” means an
Indenture dated 5 May 2005 among the Company, CME N.V., CME B.V., the 2005
Trustee, The Bank of New York Mellon (formerly JPMorgan Chase Bank, N.A., London
Branch) as Principal Paying Agent and Transfer Agent, and The Bank of New York
Mellon (Luxembourg) S.A. (formerly X.X. Xxxxxx Bank Luxembourg S.A.) as
Registrar, Luxembourg Transfer Agent and Luxembourg Paying Agent.
“2007 Indenture” means an
Indenture dated 16 May 2007 among the Company, CME N.V., CME B.V., the 2007
Trustee, The Bank of New York Mellon (formerly The Bank of New York) as Transfer
Agent and Principal Paying Agent, and The Bank of New York Mellon (Luxembourg)
S.A. as Registrar, Luxembourg Transfer Agent and Luxembourg Paying
Agent.
“2008 Indenture” means an
Indenture dated 10 March 2008, between, amongst others, the Company, CME N.V.,
CME B.V., the 2008 Trustee, The Bank of New York Mellon (formerly The Bank of
New York) as Transfer Agent, Principal Paying Agent, and Conversion
Agent.
“2009 Indenture” means an
Indenture dated on or about the date hereof, between, amongst others, the
Company, CME N.V., CME B.V., the 2009 Note Trustee, the 2009 Security Trustee,
The Bank of New York Mellon, acting through its London Branch as Transfer Agent
and Principal Paying Agent and The Bank of New York Mellon (Luxembourg) S.A. as
Registrar, Transfer Agent and Paying Agent.
1
“Obligors” means the Company,
CME N.V. and CME B.V.
“Original Agreement” means the
Intercreditor Agreement dated 21 July 2006, between the Obligors, The Bank of
New York Mellon (formerly JPMorgan Chase Bank, N.A., London Branch) as Trustee
and Security Trustee, and EBRD, as amended and restated by a Deed of Amendment
dated 16 May 2007, by a Deed of Amendment dated 22 August 2007 and as further
amended and restated by a Deed of Amendment dated 10 March 2008.
“Restated Agreement” means the
Original Agreement, as amended and restated by this Deed, and the terms of which
are set out in Schedule 1 (Restated
Agreement).
|
1.2
|
Incorporation of defined
terms
|
|
|
(a)
|
Unless
a contrary indication appears, a term defined in the draft Restated
Agreement attached as Schedule 1 to this Deed has the same meaning in this
Deed.
|
|
|
(b)
|
The
principles of construction set out in the draft Restated Agreement
attached as Schedule 1 to this Deed shall have effect as if set out in
this Deed.
|
|
1.3
|
Clauses
|
In this
Deed any reference to a “Clause” or a “Schedule” is, unless the context
otherwise requires, a reference to a Clause or a Schedule to this
Deed.
|
2.
|
RESTATEMENT OF THE ORIGINAL
AGREEMENT
|
With
effect from the date of this Deed, the Original Agreement shall be amended and
restated in the form set out in Schedule 1 (Restated
Agreement).
|
3.
|
FURTHER
ASSURANCE
|
The
Company shall ensure that each Obligor shall, at the request of the 2005
Trustee, the 2007 Trustee, the 2008 Trustee or the 2009 Security Trustee (acting
on the instructions of the 2009 Note Trustee), and at its own expense, do all
such acts and things necessary or desirable to give effect to the amendments
effected or to be effected pursuant to this Deed.
|
4.
|
MISCELLANEOUS
|
|
4.1
|
Incorporation of
terms
|
The
provisions of Article 4.02 (Entire Agreement; Amendment and
Waiver), Article 4.03 (Notices), Article 4.04 (Governing Law and
Arbitration) sub-paragraph (b), and Article 4.05 (Successors and Assigns; Third Party
Rights) of the Restated Agreement shall be incorporated into this Deed as
if set out in full in this Deed and as if references in those clauses to “this
Agreement” are references to this Deed.
|
4.2
|
Counterparts
|
This Deed
may be executed in any number of counterparts, and this has the same effect as
if the signatures on the counterparts were on a single copy of this
Deed.
2
|
5.
|
GOVERNING
LAW
|
This Deed
shall be governed and construed in accordance with English law.
This
Deed has been entered into on the date stated at the beginning of this
Deed.
3
SCHEDULE
1
Restated
Agreement
[Intentionally left blank]
1
Schedule
I to the Deed of Amendment
between
and
CENTRAL
EUROPEAN MEDIA ENTERPRISES N.V.
and
CME
MEDIA ENTERPRISES B.V.
as
Obligors
and
BNY
CORPORATE TRUSTEE SERVICES LIMITED
and
THE
BANK OF NEW YORK MELLON
(formerly
THE BANK OF NEW YORK)
as 2007
Trustee
THE
BANK OF NEW YORK MELLON
(formerly
THE BANK OF NEW YORK)
as 2008
Trustee
and
THE
BANK OF NEW YORK MELLON, ACTING THROUGH ITS LONDON BRANCH
as 2009
Note Trustee
and
THE
LAW DEBENTURE TRUST CORPORATION p.l.c.
as 2009
Security Trustee
Dated 21
July 2006
(as
amended and restated by a
Deed of
Amendment dated 16 May 2007,
by a Deed
of Amendment dated 22 August 2007
by a Deed
of Amendment dated 10 March 2008
by a Deed
of Amendment dated 17 September 2009
and by a
Deed of Amendment dated 29 September 2009)
TABLE
OF CONTENTS
|
ARTICLE
1 - DEFINITIONS
|
2
|
||
|
Section
1.01.
|
Definitions
|
2
|
|
|
Section
1.02.
|
Interpretation
|
6
|
|
|
Section
1.03.
|
Effect
as a Deed
|
6
|
|
|
ARTICLE
2 - CONSENT AND ACKNOWLEDGEMENT
|
6
|
||
|
Section
2.01.
|
Consent
and Acknowledgement
|
6
|
|
|
ARTICLE
3 - SHARING AND ENFORCEMENT
|
6
|
||
|
Section
3.01.
|
Application
of Distribution Moneys
|
6
|
|
|
Section
3.02.
|
Notional
Conversion of Amounts
|
7
|
|
|
Section
3.03.
|
Trust
|
8
|
|
|
Section
3.04.
|
Enforcement
of Security
|
8
|
|
|
ARTICLE
4 - MISCELLANEOUS
|
10
|
||
|
Section
4.01.
|
Term
of Agreement
|
10
|
|
|
Section
4.02.
|
Entire
Agreement; Amendment and Waiver
|
10
|
|
|
Section
4.03.
|
Notices
|
10
|
|
|
Section
4.04.
|
Governing
Law and Arbitration
|
10
|
|
|
Section
4.05.
|
Successors
and Assigns; Third Party Rights
|
11
|
|
|
Section
4.06.
|
Counterparts
|
11
|
|
AGREEMENT entered into as a
Deed and dated 21 July 2006 (and amended and restated on 16 May, 2007, on 22 August
2007, 10 March 2008, 17 September 2009 and as further amended and restated on 29
September 2009) between CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD. (the “Company”), CENTRAL EUROPEAN MEDIA ENTERPRISES
N.V. (“CME
N.V.”), CME MEDIA
ENTERPRISES B.V. (“CME
B.V.”) (the Company, CME N.V. and CME B.V. together, the “Obligors”), BNY CORPORATE TRUSTEE SERVICES
LIMITED (in its capacity as Trustee under the 2007 Indenture), THE BANK OF NEW YORK MELLON
(formerly THE BANK OF
NEW YORK) (in its capacity as Security Trustee under the 0000 Xxxxxxxxx)
(together, the “2007
Trustee”), THE BANK OF
NEW YORK MELLON (formerly THE BANK OF NEW YORK) (in its
capacity as Trustee and Security Trustee under the 2008 Indenture) (the “2008 Trustee”) and THE BANK OF NEW YORK MELLON, acting
through its London branch (in its capacity as Note Trustee under the 2009
Indenture) and THE LAW
DEBENTURE TRUST CORPORATION p.l.c. (in
its capacity as Security Trustee under the 2009 Indenture) (together, where the
context permits, the “2009
Trustee”).
PREAMBLE
WHEREAS, pursuant to an
Indenture dated 16 May 2007 (the “2007 Indenture”) among the
Company, CME N.V., CME B.V., the 2007 Trustee, The Bank of New York Mellon
(formerly The Bank of New York) as Transfer Agent and Principal Paying Agent,
The Bank of New York Mellon (Luxembourg) S.A. as Registrar, Luxembourg Transfer
Agent and Luxembourg Paying Agent, the Company has created and issued the 2007
Notes in an aggregate principal amount of €150,000,000, subject to the terms and
conditions set forth in the 2007 Indenture;
WHEREAS, pursuant to an
Indenture dated 10 March 2008 (the “2008 Indenture”) between,
amongst others, the Company, CME N.V., CME B.V., the 2008 Trustee, The Bank of
New York Mellon (formerly The Bank of New York) as Transfer Agent, Principal
Paying Agent and Conversion Agent, the Company has created and issued the 2008
Notes in an aggregate principal amount of $475,000,000, subject to the terms and
conditions set forth in the 2008 Indenture;
WHEREAS, pursuant to an
Indenture dated 17 September 2009 (the “2009 Indenture”) between,
amongst others, the Company, CME N.V., CME B.V., the 2009 Note Trustee, the 2009
Security Trustee, The Bank of New York Mellon, acting through its London Branch
as Transfer Agent and Principal Paying Agent and The Bank of New York Mellon
(Luxembourg) S.A. as Registrar, Transfer Agent and Paying Agent, the Company has
created and issued the 2009 Notes in an aggregate principal amount of
€[440],000,000, subject to the terms and conditions set forth in the 2009
Indenture;
WHEREAS, the Obligors (1) have
provided the 2007 Notes Security to the 2007 Trustee as security for the prompt
payment when due of all amounts payable in respect of the 2007 Notes Debt; (2)
have provided the 2008 Notes Security to the 2008 Trustee for the prompt payment
when due of all amounts payable in respect of the 2008 Notes Debt; and (3) have
provided or will provide the 2009 Notes Security to the 2009 Security Trustee
for the prompt payment when due of all amounts payable in respect of the 2009
Notes Debt; and
WHEREAS, the Parties wish to
formalise the manner in which the 2007 Trustee, the 2008 Trustee and the 2009
Trustee will share in and enforce the Security on a pari passu
basis.
NOW, THIS DEED WITNESSETH AND IT IS
HEREBY AGREED as follows:
ARTICLE
1 - DEFINITIONS
|
Section
1.01.
|
Definitions
|
Wherever
used in this Agreement (including the Preamble), unless stated otherwise or the
context otherwise requires, the terms defined in the Preamble have the
respective meanings given to them therein and the following terms have the
following meanings:
|
“2007
Notes”
|
means
the outstanding debt securities issued under the 2007
Indenture.
|
|
“2007
Notes Creditor”
|
means
each holder of the 2007 Notes and/or the 2007 Trustee (on its own behalf
and as applicable on behalf of the holders of the 2007
Notes).
|
|
“2007
Notes Debt”
|
means
all Liabilities of any Obligor to any 2007 Notes Creditor under or in
connection with the 2007 Notes Finance
Documents.
|
|
“2007
Notes DischargeDate”
|
means
the date on which the 2007 Trustee is satisfied that all of the 2007 Notes
Debt has been irrevocably and unconditionally paid and discharged and all
rights of the Company to create and issue further 2007 Notes under the
0000 Xxxxxxxxx have been
cancelled.
|
|
“2007
Notes Finance Documents”
|
means
the 2007 Indenture and the 2007 Notes Security
Documents.
|
|
“2007
Notes Security”
|
means
the “Collateral” as such term is defined in Section 11.1 of the 2007
Indenture.
|
|
“2007
Notes Security Documents”
|
means
the “Security Documents” as such term is defined in Section 11.1 of the
2007 Indenture, and includes (a) the pledge of shares in CME N.V. granted
on or about the date hereof by the Company in favour of the 2007 Trustee;
(b) the pledge of shares in CME B.V. granted on or about the date hereof
by CME N.V. in favour of the 2007 Trustee; and (c) the security assignment
dated on or about the date hereof between the Company, CME B.V. and the
2007 Trustee and relating to the rights, interests and benefits under the
Framework Agreement dated 13 December, 2004 (as amended) between the
Company, CME B.V. and PPF (Cyprus)
Ltd.
|
|
“2007
Trustee”
|
means
BNY Corporate Trustee Services Limited as Trustee under the 2007 Indenture
and where relevant The Bank of New York Mellon (formerly The Bank of New
York) as Security Trustee under the 2007
Indenture.
|
|
“2008
Notes”
|
means
the outstanding convertible debt securities issued under the 2008
Indenture.
|
|
“2008
Notes Creditor”
|
means
each holder of the 2008 Notes and/or the 2008 Trustee (on its own behalf
and as applicable on behalf of the holders of the 2008
Notes).
|
|
“2008
Notes Debt”
|
means
all Liabilities of any Obligor to any 2008 Notes Creditor under or in
connection with the 2008 Notes Finance
Documents.
|
|
“2008
Notes Discharge Date”
|
means
the date on which the 2008 Trustee is satisfied that all of the 2008 Notes
Debt has been irrevocably and unconditionally paid and discharged and all
rights of the Company to create and issue further 2008 Notes under the
0000 Xxxxxxxxx have been
cancelled.
|
|
“2008
Notes Finance Documents”
|
means
the 2008 Indenture and the 2008 Notes Security
Documents.
|
|
“2008
Notes Security”
|
means
the “Collateral” as such term is defined in Section 12.01 of the 2008
Indenture.
|
|
“2008
Notes Security Documents”
|
means
the “Security Agreements” as such term is defined in Section 12.01 of the
2008 Indenture, and includes (a) the pledge of shares in CME N.V. granted
on or about the date hereof by the Company in favour of the 2008 Trustee;
(b) the pledge of shares in CME B.V. granted on or about the date hereof
by CME N.V. in favour of the 2008 Trustee; and (c) the security assignment
dated on or about the date hereof between the Company, CME B.V. and the
2008 Trustee and relating to the rights, interests and benefits under the
Framework Agreement dated 13 December, 2004 (as amended) between the
Company, CME B.V. and PPF (Cyprus)
Ltd.
|
|
“2008
Trustee”
|
means
The Bank of New York Mellon (formerly The Bank of New York) as Trustee
under the 2008 Indenture and where relevant as Security Trustee under the
2008 Indenture.
|
|
“2009
Notes”
|
means
the outstanding debt securities issued under the 2009
Indenture.
|
|
“2009
Notes Creditor”
|
means
each holder of the 2009 Notes and/or the 2009 Note Trustee (on its own
behalf and as applicable on behalf of the holders of the 2009 Notes)
and/or the 2009 Security Trustee (on its own behalf and as applicable on
behalf of the holders of the 2009
Notes).
|
|
“2009
Notes Debt”
|
means
all Liabilities of any Obligor to any 2009 Notes Creditor under or in
connection with the 2009 Notes Finance
Documents.
|
|
“2009
Notes Discharge Date”
|
means
the date on which the 2009 Security Trustee (acting on instructions of the
2009 Note Trustee) is satisfied that all of the 2009 Notes Debt has been
irrevocably and unconditionally paid and discharged and all rights of the
Company to create and issue further 2009 Notes under the 0000 Xxxxxxxxx
have been cancelled.
|
|
“2009
Notes Finance Documents”
|
means
the 2009 Indenture and the 2009 Notes Security
Documents.
|
|
“2009
Notes Security”
|
means
the “Collateral” as such term is defined in Section 1.1 of the 2009
Indenture.
|
|
“2009
Notes Security Documents”
|
means
the “Security Documents” as such term is defined in Section 11.1 of the
2009 Indenture, and includes (a) the pledge of shares in CME N.V. granted
on or about the date hereof by the Company in favour of the 2009 Security
Trustee; (b) the pledge of shares in CME B.V. granted on or about the date
hereof by CME N.V. in favour of the 2009 Security Trustee; and (c) the
security assignment dated on or about the date hereof between the Company,
CME B.V. and the 2009 Security Trustee and relating to the rights,
interests and benefits under the Framework Agreement dated 13 December,
2004 (as amended) between the Company, CME B.V. and PPF (Cyprus)
Ltd.
|
|
“2009
Security Trustee”
|
means
The Law Debenture Trust Corporation p.l.c. as Security Trustee under the
2009 Indenture.
|
|
“2009
Trustee”
|
means
The Bank of New York Mellon, acting through its London branch as Note
Trustee under the 2009 Indenture.
|
|
“Amount
Outstanding”
|
means
the aggregate of the Liabilities at any time and from time to time owing
and unpaid by any of the Obligors in respect of the 2007 Notes Debt, the
2008 Notes Debt and the 2009 Notes
Debt.
|
|
“Distribution
Moneys”
|
means
any moneys received by any of the Secured Parties or any person acting on
behalf, or on the instructions, of any of them from the enforcement of the
Security or any part thereof.
|
|
“Enforcement
Notice”
|
shall
have the meaning ascribed to it in Section
3.04(d).
|
|
"Euro"
or "€"
|
means
the lawful currency of the member states of the European Union that adopt
the single currency in accordance with the Treaty Establishing the
European Community, as amended by the Treaty on European Union and the
Treaty of Amsterdam.
|
|
“Finance
Document”
|
means
each of the 2007 Notes Finance Documents, the 2008 Notes Finance
Documents, the 2009 Notes Finance Documents and this
Agreement.
|
|
“Foreign
Exchange Event”
|
means
the unavailability of foreign exchange, or any prohibition or restriction
imposed as a result of a moratorium or debt rescheduling by the central
bank or any other governmental agency or authority within any relevant
jurisdiction where the payment of any Amount Outstanding shall be made or
where any Distribution Monies are
recovered.
|
|
“Liability”
|
means,
in relation to any Finance Document, any present or future liability
(actual or contingent) which is or may be payable or owing under or in
connection with that Finance Document, whether or not matured or
liquidated, including (without limitation) in respect of principal,
interest, default interest, commission, charges, fees, expenses,
indemnities and other amounts provided for
therein.
|
|
“Party”
|
means
any Obligor, the 2007 Trustee, the 2008 Trustee or the 2009 Trustee as the
context requires.
|
|
“Prior
Party”
|
means,
(i) in relation to the 2008 Trustee: the 2007 Trustee; and (ii) in
relation to the 2009 Trustee: the 2007 Trustee, and/or the 2008
Trustee.
|
|
“Secured
Parties”
|
means
the 2007 Trustee, the 2008 Trustee and the 2009 Security
Trustee.
|
|
“Security”
|
means
the 2007 Notes Security, the 2008 Notes Security and the 2009 Notes
Security.
|
|
“Security
Documents”
|
means
the 2007 Notes Security Documents, the 2008 Notes Security Documents and
the 2009 Notes Security Documents.
|
|
“Subsequent
Party”
|
means,
(i) in relation to the 2007 Trustee: the 2008 Trustee and the 2009
Trustee; and (ii) in relation to the 2008 Trustee: the 2009
Trustee.
|
|
“USD”
or “$”
|
means
the lawful currency of the United States of
America.
|
|
Section
1.02.
|
Interpretation
|
|
(a)
|
In
this Agreement, unless the context otherwise requires, words denoting the
singular include the plural and vice versa, words denoting persons include
corporations, partnerships and other legal persons and references to a
person include its successors and permitted
assigns.
|
|
(b)
|
In
this Agreement, a reference to a specified Article or Section shall be
construed as a reference to that specified Article or Section of this
Agreement.
|
|
(c)
|
In
this Agreement, a reference to an agreement shall be construed as a
reference to such agreement as it may be amended, varied, supplemented,
novated or assigned from time to
time.
|
|
(d)
|
In
this Agreement, the headings and the Table of Contents are inserted for
convenience of reference only and shall not affect the interpretation of
this Agreement.
|
|
Section
1.03.
|
Effect
as a Deed
|
This
Agreement is intended to take effect as a Deed.
ARTICLE
2 - CONSENT AND ACKNOWLEDGEMENT
|
Section
2.01.
|
Consent
and Acknowledgement
|
|
(a)
|
The
2007 Trustee hereby acknowledges the creation and existence of the 2008
Notes Security and the 2009 Notes Security on a pari passu basis with
the 2007 Notes Security in right and priority of payment, without any
preference between themselves.
|
|
(b)
|
The
2008 Trustee hereby acknowledges the creation and existence of the 2007
Notes Security and the 2009 Notes Security on a pari passu basis with
the 2008 Notes Security in right and priority of payment, without any
preference between themselves.
|
|
(c)
|
The
2009 Trustee hereby acknowledges the creation and existence of the 2007
Notes Security and the 2008 Notes Security on a pari passu basis with
the 2009 Notes Security in right and priority of payment, without any
preference between themselves.
|
|
(d)
|
The
Obligors hereby agree to the terms of this Agreement and undertake with
the Secured Parties to observe the provisions hereof and not to do or omit
to do anything which may prejudice or adversely affect the enforcement of
such provisions.
|
ARTICLE
3 - SHARING AND ENFORCEMENT
|
Section
3.01.
|
Application
of Distribution Moneys
|
|
(a)
|
Unless
and until the whole of the Amount Outstanding has been paid in full, all
Distribution Moneys shall, as between the 2007 Trustee, the 2008 Trustee
and the 2009 Trustee, be applied and divided as
follows:
|
|
|
(1)
|
first,
pro rata in paying all proper costs, charges and expenses incurred by the
Secured Parties in the enforcement of the Security or any part thereof or
otherwise in collecting Distribution Moneys, which will be pro rata to the
Amount Outstanding under the 2007 Notes Debt, the 2008 Notes Debt and the
2009 Notes Debt, respectively;
|
|
|
(2)
|
next,
pro rata in paying to each of the Secured Parties the part of the Amount
Outstanding which is due and payable to it in respect of the 2007 Notes
Debt, the 2008 Notes Debt and the 2009 Notes Debt, respectively, and, if
applicable, in accordance with Section 3.01(b);
and
|
|
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(3)
|
last,
in paying the surplus (if any) to the person or persons entitled
thereto.
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(b)
|
If
the Distribution Moneys are or may be insufficient to pay in full all
amounts due under Section 3.01(a)(1) or 3.01(a)(2), as the case may be,
then the Distribution Moneys shall be apportioned for payment under
Section 3.01(a)(1) or 3.01(a)(2), as the case may be, ratably and without
preference or priority between the Secured Parties in the proportions that
the part of the Amount Outstanding which is due in respect of,
respectively, the 2007 Notes Debt, the 2008 Notes Debt and the 2009 Notes
Debt at the date of such payment bears to the whole of the Amount
Outstanding at such date. Pending such payment, such
Distribution Moneys shall be held in a segregated interest-bearing deposit
account, and interest thereon shall form part of the Distribution Moneys
for payment under Section 3.01(a)(1) or
3.01(a)(2).
|
|
(c)
|
Notwithstanding
any other provision of this Agreement, during the existence of a Foreign
Exchange Event, none of the Secured Parties shall be required to share
with the others any Distribution Moneys in a currency other than the local
currency of the jurisdiction of such recovery (in this Section 3.01(c)
referred to as the “Local
Currency”) or proceeds of any Distribution Moneys which it recovers
pro rata in accordance with Section 3.01(a) and 3.01(b) in any currency
other than the Local Currency.
|
|
Section
3.02.
|
Notional
Conversion of Amounts
|
For the
purposes of determining the respective entitlements of the Secured Parties
between themselves at any time or from time to time to any Distribution Moneys,
the Secured Parties shall use Euro as the currency of reference. Any
amounts expressed in currencies other than Euro shall be notionally converted
into Euro at the effective rate of exchange for buying Euro on the date of such
payment as notified by the European Central Bank. If, in the case of
any particular currency, there is no such effective rate of exchange on such
date, any amount expressed in that currency shall be notionally converted into
Euro at such rate of exchange as may be reasonably determined by the 2007
Trustee (in respect of the 2007 Notes Debt), the 2008 Trustee (in respect of the
2008 Notes Debt) and the 2009 Note Trustee (in respect of the 2009
Notes Debt) on the basis of the most recent information provided by the
International Monetary Fund.
|
Section
3.03.
|
Trust
|
In the
event that any of the Secured Parties receives any Distribution Moneys in excess
of their respective entitlement under this Article, such Secured Party shall
promptly notify the remaining Secured Parties and hold any such excess moneys in
trust for the remaining Secured Parties, to whom it shall account therefor as
soon as the respective entitlement of each of the Secured Parties has been
established pursuant to the provisions of this Agreement.
|
Section
3.04.
|
Enforcement
of Security
|
|
(a)
|
The
2007 Trustee shall be obliged to notify the 2008 Trustee and the 2009
Trustee promptly:
|
|
|
(i)
|
in
the event that the 2007 Trustee becomes aware that the 2007 Notes Security
has become enforceable;
|
|
|
(ii)
|
in
the event that amounts outstanding in respect of the 2007 Notes Debt have
become immediately due and payable under Section 6.2 of the 0000
Xxxxxxxxx; and
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(iii)
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upon
first making demand with respect to all or any part of the 2007 Notes
Debt.
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|
(b)
|
The
2008 Trustee shall be obliged to notify the 2007 Trustee and the 2009
Trustee promptly:
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|
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(i)
|
in
the event that the 2008 Trustee becomes aware that the 2008 Notes Security
has become enforceable;
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|
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(ii)
|
in
the event that amounts outstanding in respect of the 2008 Notes Debt have
become immediately due and payable under Section 6.02 of the 0000
Xxxxxxxxx; and
|
|
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(iii)
|
upon
first making demand with respect to all or any part of the 2008 Notes
Debt.
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|
(c)
|
The
2009 Security Trustee (acting on instructions of the 2009 Note Trustee)
shall be obliged to notify the 2007 Trustee and the 2008 Trustee
promptly:
|
|
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(i)
|
in
the event that the 2009 Trustee becomes aware that the 2009 Notes Security
has become enforceable;
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|
|
(ii)
|
in
the event that amounts outstanding in respect of the 2009 Notes Debt have
become immediately due and payable under Section 6.2 of the 0000
Xxxxxxxxx; and
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|
|
(iii)
|
upon
first making demand with respect to all or any part of the 2009 Notes
Debt.
|
|
(d)
|
If
any of the Security becomes enforceable, the 2007 Trustee, the 2008
Trustee and the 2009 Security Trustee (acting on instructions of the 2009
Note Trustee) may (but shall not be obliged to) consult with the other
Secured Parties and endeavour to agree a course of action under the
Finance Documents. Notwithstanding the foregoing, at any time
that any of the Security has become enforceable, the 2007 Trustee, the
2008 Trustee and the 2009 Security Trustee (acting on instructions of the
2009 Note Trustee), by notice to the other Secured Parties (an “Enforcement Notice”),
request a joint enforcement of the Security in accordance with paragraph
(f).
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|
(e)
|
For
the avoidance of doubt:
|
|
|
(i)
|
if
a Party shall have served an Enforcement Notice on its Subsequent Parties,
such Subsequent Parties shall declare such amount of the Amount
Outstanding owed to such Subsequent Parties to be immediately due and
payable, and such Subsequent Parties shall co-operate with the Party that
has served the Enforcement Notice to enforce all relevant Security on a
pari passu basis
and in accordance with the provisions of, sub-paragraphs (i)-(iii) of
3.04(f) below; and
|
|
|
(ii)
|
if
a Party shall have served an Enforcement Notice on its Prior Parties, such
Prior Parties may declare such amount of the Amount Outstanding owing to
such Prior Parties to be immediately due and payable and co-operate with
the Party that has served the Enforcement Notice, but shall not be
required to do so, and (A)
if any such Prior Parties elect to so cooperate, then the co-operating
parties shall enforce all relevant Security on a pari passu basis and in
accordance with the provisions of sub-paragraphs (i)-(iii) of 3.04(f)
below, and (B)
if all such Prior Parties elect not to cooperate and not to enforce, then
the Party that has served the Enforcement Notice may enforce
independently, as contemplated by the provisions of 3.04(g)
below.
|
|
(f)
|
If
an Enforcement Notice is served by the 2007 Trustee, the 2008 Trustee
and/or the 2009 Security Trustee (acting on instructions of the 2009 Note
Trustee) then the Secured Parties shall (to the extent not already so due
and payable) declare all amounts of the 2007 Notes Debt, the 2008 Notes
Debt and the 2009 Notes Debt, respectively, to be immediately due and
payable under Section 6.2 of the 0000
Xxxxxxxxx, Xxxxxxx 6.02 of the 2008
Indenture or Section 6.2 of the 0000
Xxxxxxxxx and shall co-operate with each other to enforce the Security on
a pari passu
basis and in accordance with the following
provisions:
|
|
|
(i)
|
the
2007 Notes Security, the 2008 Notes Security and the 2009 Notes Security
shall be enforced jointly and, so far as practicable, by the same
method;
|
|
|
(ii)
|
such
enforcement will be effected with the aim of maximising recoveries with
the objective of achieving an expeditious realisation of assets subject to
the Security; and
|
|
|
(iii)
|
in
the case of the exercise of a power of sale in accordance with the
Security Documents, each of the Secured Parties shall execute such release
or other necessary document so as to permit a good title free from any
Security to be passed to the
purchasers.
|
|
(g)
|
For
the avoidance of doubt, neither the 2007 Trustee, the 2008 Trustee nor the
2009 Security Trustee (acting on instructions of the 2009 Note Trustee)
shall be prevented from separately commencing enforcement action under the
2007 Notes Security, the 2008 Notes Security or the 2009 Notes Security
(as applicable), at any time prior to an Enforcement Notice having been
served by the other Secured Parties, provided that, such Secured Party
seeking to enforce its Security has delivered an Enforcement Notice on the
other Secured Parties prior to commencing such
action.
|
|
(h)
|
Each
of the Secured Parties shall keep the other informed of any proceedings to
enforce the Security or any part thereof, any other proceedings against
the Company and any other material matters which may affect the operation
of this Agreement.
|
|
(i)
|
In
each case in the absence of manifest error: (x) the global note
representing the 2007 Notes and the relevant entries thereon shall be
conclusive evidence of the principal amount of the 2007 Notes Debt from
time to time; (y) the global note representing the 2008 Notes and the
relevant entries thereon shall be conclusive evidence of the principal
amount of the 2008 Notes Debt from time to time; and (z) the global note
representing the 2009 Notes and the relevant entries thereon shall be
conclusive evidence of the principal amount of the 2009 Notes Debt from
time to time.
|
ARTICLE
4 - MISCELLANEOUS
|
Section
4.01.
|
Term
of Agreement
|
This
Agreement shall continue in force until the latest of the occurrence of any of
the 2007 Notes Discharge Date, the 2008 Notes Discharge Date and the 2009 Notes
Discharge Date.
|
Section
4.02.
|
Entire
Agreement; Amendment and
Waiver
|
This
Agreement and the documents referred to herein constitute the entire obligation
of the Parties with respect to the subject matter hereof and shall supersede any
prior expressions of intent or understandings with respect to this
transaction. Any amendment to this Agreement (including, without
limitation, this Section 4.02) shall be in writing, signed by all
Parties.
|
Section
4.03.
|
Notices
|
Any
notice or other communication to be given or made under this Agreement to any
Party shall be in writing. Except as otherwise provided in this
Agreement, such notice or other communication shall be deemed to have been duly
given or made when it is delivered by hand, courier or facsimile transmission to
the Party to which it is required or permitted to be given or made at such
Party's address specified below its signature to this Agreement or at such other
address as such Party designates by notice to the Party giving or making such
notice or other communication.
|
Section
4.04.
|
Governing
Law and Arbitration
|
|
(a)
|
This
Agreement shall be governed by and construed in accordance with the laws
of England.
|
|
(b)
|
Any
dispute, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity hereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration Rules
as at present in force. There shall be one arbitrator and the
appointing authority shall be the London Court of International
Arbitration. The seat and place of arbitration shall be London,
England and the English language shall be used throughout the arbitral
proceedings. The Parties hereby waive any rights under the
Arbitration Xxx 0000 or otherwise to appeal any arbitration award to, or
to seek determination of a preliminary point of law by, the courts of
England.
|
|
Section
4.05.
|
Successors
and Assigns; Third Party
Rights
|
|
(a)
|
This
Agreement shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto; provided, however, that neither the
2007 Trustee, the 2008 Trustee nor the 2009 Trustee shall assign or
transfer any interest it has under this Agreement or the Security unless
the assignee or transferee undertakes to be bound by the provisions of
this Agreement.
|
|
(b)
|
For
the avoidance of doubt, the Obligors shall not have any rights under this
Agreement, the provisions of which are only for the benefit of the 2007
Trustee, the 2008 Trustee or the 2009 Trustee (as
applicable).
|
|
(c)
|
Except
as provided in this Section 4.05, none of the terms of this Agreement are
intended to be enforceable by any third party. A person who is not a party
to this Agreement has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this
Agreement.
|
|
Section
4.06.
|
Counterparts
|
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
agreement.
[Intentionally left blank]
IN WITNESS WHEREOF, the
parties hereto, acting through their duly authorised representatives, have
caused this Deed to be executed and delivered as a Deed on the date first above
written.
THE
OBLIGORS
for and
on behalf of
|
By:
|
/s/ Xxxxxxx
Xxxxx
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
Title:
|
Chief
Financial Officer
|
|
Address:
|
c/o
CME Development Corp.
|
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
|
Facsimile:
|
x00
00 0000 0000
|
|
Attention:
|
General
Counsel
|
EXECUTED and DELIVERED as a DEED
for and
on behalf of
CENTRAL
EUROPEAN MEDIA ENTERPRISES N.V.
|
By:
|
/s/ Xxxxxx
Xxxxxxx
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
Title:
|
Managing
Director
|
|
Address:
|
c/o
CME Development Corp.
|
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
|
Facsimile:
|
x00
00 0000 0000
|
|
Attention:
|
General
Counsel
|
EXECUTED and DELIVERED as a DEED
for and
on behalf of
CME
MEDIA ENTERPRISES B.V.
|
By:
|
/s/ Xxxxx
Xxxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
Title:
|
Managing
Director
|
|
Address:
|
Xxx
0X
|
0000XX
Xxxxxxxxx
The
Netherlands
|
Facsimile:
|
x00-00-0-000-000
|
|
Attention:
|
Managing
Director
|
The 2005 Trustee
EXECUTED and DELIVERED as a DEED
for and
on behalf of
THE
BANK OF NEW YORK MELLON
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
in
the presence of:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
Address:
|
x/x
Xxx Xxxxxx Xxxxxx
|
Xxxxxx
X00 XXX
|
Facsimile:
|
+44
-20-7964-8819
|
|
Attention:
|
Corporate
Trust Services
|
The
2007 Trustee
EXECUTED and DELIVERED as a DEED
for and
on behalf of
BNY
CORPORATE TRUSTEE SERVICES LIMITED
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
in
the presence of:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
Address:
|
Xxx
Xxxxxx Xxxxxx
|
Xxxxxx
X00 0XX
Xxxxxx
Xxxxxxx
|
Facsimile:
|
+44
-20-7964-8819
|
|
Attention:
|
Corporate
Trust Services
|
EXECUTED and DELIVERED as a DEED
for and
on behalf of
THE
BANK OF NEW YORK MELLON
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
in
the presence of:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
Address:
|
Xxx
Xxxxxx Xxxxxx
|
Xxxxxx
X00 0XX
Xxxxxx
Xxxxxxx
|
Facsimile:
|
+44
-20-7964-8819
|
|
Attention:
|
Corporate
Trust Services
|
The 2008 Trustee
EXECUTED and DELIVERED as a DEED
for and
on behalf of
THE
BANK OF NEW YORK MELLON
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
By:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
Address:
|
Xxx
Xxxxxx Xxxxxx
|
Xxxxxx
X00 0XX
Xxxxxx
Xxxxxxx
|
Facsimile:
|
+44
-20-7964-8819
|
|
Attention:
|
Corporate
Trust Services
|
The 2009 Note Trustee
EXECUTED and DELIVERED as a DEED by
THE
BANK OF NEW YORK MELLON
acting
by its duly authorised signatory
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
By:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Title:
|
Senior
Associate
|
|
Address:
|
Xxx
Xxxxxx Xxxxxx
|
Xxxxxx
X00 0XX
Xxxxxx
Xxxxxxx
|
Facsimile:
|
+44
-20-7964-8819
|
|
Attention:
|
Corporate
Trust Services
|
The 2009 Security Trustee
EXECUTED and DELIVERED as a DEED
for and
on behalf of
THE
LAW DEBENTURE TRUST CORPORATION p.l.c.
|
By:
|
/s/ Xxxxxx
Xxxxx-Xxxx
|
|
Name:
|
Xxxxxx
Xxxxx-Xxxx
|
|
Title:
|
Director
|
|
By:
|
/s/ Xxxxxxx
Xxxxx
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
Title:
|
Director
|
|
Address:
|
Fifth
floor
|
000 Xxxx
Xxxxxx
Xxxxxx
XX0X 0XX
|
Facsimile:
|
+44
-20-7606-0643
|
|
Attention:
|
The
Manager, Commercial Trusts
|
