Exhibit 10.7
SUBORDINATED MASTER (LOAN) AGREEMENT
(IN RESPECT OF UPC POLSKA, INC.)
This Subordinated Master (Loan) Agreement (this "AGREEMENT") is to be effective
as of the undersigned date between
UNITED PAN-EUROPE COMMUNICATIONS N.V. (the "LENDER"), a public limited liability
company organised and existing under the laws of The Netherlands, with its
registered office in The Netherlands; and
UPC POLSKA, INC. (the "BORROWER"), a Delaware corporation.
WHEREAS
This Agreement evidences the terms and conditions of the debt owing from
the Borrower to the Lender as set out in Appendix I of this Agreement and
replaces all previous agreements between the Lender and the Borrower with
respect thereto.
NOW IT IS HEREBY AGREED
1. TERM LOAN
1.1 The principal amount hereof is stated in Appendix I of this
Agreement (the "PRINCIPAL AMOUNT").
1.2 Subject to paragraph 3 and Section 4.9 below, the Borrower
will repay the outstanding Principal Amount on 30 July,
2009 (the "REPAYMENT DATE") with unpaid interest thereon in
Euros in immediately available funds at the bank and to the
account that the Lender dictates.
1.3 Subject to Section 4.9 below, the Borrower may, at any time
prior to the Repayment Date, prepay the whole or part of
the outstanding Principal Amount.
1.4 Interest shall accrue on the outstanding Principal Amount
at an interest rate per annum set out on Appendix I or at
such other rate as is agreed between the Borrower and the
Lender from time to time (the "Lending Rate") for the
period from and including the date on which such Principal
Amount was advanced by the Lender to the Borrower to but
excluding the date on which such Principal Amount is repaid
in full. Unless otherwise approved by the Lender, accrued
interest is payable on the last business day of each
calendar month and on the date of each payment or
prepayment of the Principal Amount.
1.5 The Lender will endorse from time to time and at such times
as the Lender shall determine the following on Appendix 1
of this Agreement or any continuation thereof;
(a) the outstanding Principal Amount;
(b) the amount of any pre-payments of the outstanding
Principal Amount made by the Borrower under Section
1.3 above;
(c) the Lending Rate applying from time to time;
(d) the amount of money transfers added to the
outstanding Principal Amount pursuant to section 1.7
below; and
(e) the amount of invoices sent added to the outstanding
Principal Amount pursuant to section 1.8 below,
PROVIDED that the failure so to endorse Appendix I shall
not affect the Borrower's obligations hereunder.
1.6 Notwithstanding anything to the contrary in this Agreement,
Appendix I of this Agreement may be endorsed, amended and
modified by the Lender without any consent from or writing
executed by the Borrower.
1.7 Money transfers made from the Lender to the Borrower during
the term of and pursuant to this Agreement shall be added
to the outstanding Principal Amount on the value date that
money transfers were made and interest shall accrue upon it
as of that date.
1.8 At the Lender's option, amounts equal to the amounts of
invoices sent from the Lender to the Borrower may be added
to the outstanding Principal Amount on the last day of the
month they were sent and interest shall accrue upon it as
of the first of the month following,
PROVIDED that the outstanding Principal Amount hereof shall
not exceed USD 150 million (or the foreign currency
equivalent of such sum).
1.9 Subject to the terms and conditions of this Agreement, the
Lender may make additional loans to the Borrower, following
receipt by the Lender from the Borrower of a drawdown
notice substantially in the form set out in Appendix II of
this Agreement (the "DRAWDOWN NOTICE"),
PROVIDED that the outstanding Principal Amount hereof shall
not exceed USD 150 million (or the foreign currency
equivalent of such sum).
1.10 All payments under this Agreement to the Lender will be
made by the Borrower without reflecting any deduction for
any set-off, suspension or counterclaim and without
withholding or deduction for or on account of any present
or future taxes, duties, assessments or governmental
charges of whatever nature, unless the withholding of such
taxes or duties is required by applicable law, in which
case, the relevant payment shall be increased to the extent
necessary to ensure that, after the making of such
withholding or deduction, the Lender receives (and retains,
free from any liability in respect of such deduction or
withholding) a net sum equal to the sum that it would have
received had no such withholding or deduction been required
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and the Borrower shall indemnify the Lender against any
losses or costs incurred by any of them by reason of any
failure of the Borrower to make any such deduction or
withholding or by reason of any increased payment not being
made on the due date for such payment.
2. REPRESENTATIONS AND WARRANTIES
The Borrower has all necessary corporate power and
authority to execute, deliver and perform its obligations
under this Agreement; the execution, delivery and
performance by the Borrower of this Agreement has been duly
authorized by all necessary corporate action on its part;
and this Agreement has been duly and validly executed and
delivered by the Borrower and will constitute its legal,
valid and binding obligations, enforceable against the
Borrower in accordance with its terms.
3. EVENTS OF DEFAULT
If one or more of the following events (each herein called
an "EVENT OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall default in the payment when due
of the Principal Amount or any interest payable by
it hereunder; or
(b) The Borrower shall default in the performance of any
of its other obligations in this Agreement and such
default (if capable of remedy before the expiry of
such period) continues unremedied for a period of 28
days from the earlier of the date on which (i) the
Borrower has become aware of the default or (ii) the
Lender gives notice to the Borrower requiring the
same to be remedied, unless no applicable period to
remedy such default exists or is available; or
(c) The Borrower or any of its subsidiaries shall
default in the payment when due, or within any
originally applicable grace period, as the case may
be, of any principal of or interest on any of its
other indebtedness; or any event specified in any
agreement evidencing or relating to any such
indebtedness shall occur, if the effect of such
event is to cause or permit the lenders in respect
of such indebtedness to cause such indebtedness to
become due or to be prepaid in full prior to its
stated maturity or any representation or warranty
made by the Borrower under this Agreement shall
prove to have been false or incorrect in any
material respect when made or deemed made and, in
the event that any representation or warranty is
capable of remedy,
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the misrepresentation is not remedied within 28 days
of the earlier of the date on which (i) the Borrower
has become aware of the misrepresentation or (ii)
the Lender gives notice to the Borrower requiring
the same to be remedied; or
(d) The Borrower or any of its subsidiaries shall admit
in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(e) The Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee, administrator or
liquidator of itself or of all or a substantial part
of its property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a
voluntary winding up, (iv) file a petition seeking
to take advantage of any other law relating to
bankruptcy, insolvency, receivership,
reorganisation, administration, winding-up, or
composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against
it in an involuntary winding up, or (vi) take any
corporate action for the purpose of effecting any of
the foregoing; or
(f) A proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its
subsidiaries, in any court of competent
jurisdiction, seeking (i) its liquidation,
reorganisation, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, administrator,
custodian, liquidator or the like of the Borrower or
any of its subsidiaries or of all or any substantial
part of its assets, or (iii) similar relief in
respect of the Borrower or any of its subsidiaries
under any law relating to bankruptcy, insolvency,
receivership, reorganisation, winding-up, or
composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an
order, judgement or decree approving or ordering any
of the foregoing shall be entered and continue
unstated and in effect, for a period of 120 or more
days; or an order for relief against the Borrower or
any of its subsidiaries shall be entered in an
involuntary winding up; or
(g) This Agreement or any material provision hereof
shall cease to be in full force and effect as
against the Borrower for any reason other than a
termination hereof upon full payment and
satisfaction of the obligations hereunder or the
Borrower shall contest or purport to repudiate or
disavow any of its obligations hereunder or the
validity or enforceability thereof; or
(h) In the opinion of the Lender, a material adverse
change has occurred in the business, operations,
prospects, or the condition (financial or otherwise)
of the Borrower or any of its subsidiaries or any
event or circumstance has occurred that could have a
material adverse effect on the Borrower's ability to
perform or observe its obligations under this
Agreement or on the legality, validity, binding
effect or enforceability of this Agreement.
THEREUPON: (i) in the case of an Event of Default other
than the ones referred to in clause (e) or (f) of this
Section with respect to the Borrower, the Lender may, by
notice to the Borrower, declare the Principal Amount then
outstanding, and the
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accrued interest thereon and all other amounts payable by
the Borrower hereunder, to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities
of any kind, all of which are hereby expressly waived by
the Borrower; and (ii) in the case of the occurrence of an
Event of Default referred to in clause (e) or (f) of this
Section with respect to the Borrower the Principal Amount
then outstanding, and the accrued interest thereon and all
other amounts payable by the Borrower hereunder shall
automatically become immediately due and payable without
presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the
Borrower.
4. MISCELLANEOUS
4.1 NOTICES
All notices and other communications provided for
herein (including, without limitation, any
modifications of, or waivers or consents under, this
Agreement) shall be given or made by telex,
facsimile or by hand in writing and telexed,
transmitted by facsimile, mailed or delivered to the
intended recipient at its "Address for Notices"
specified below its name on the signature pages
hereof; or, as to any party, at such other address
as shall be designated by such party in a notice to
each other party. Except as otherwise provided in
this Agreement, all such communications shall be
deemed to have been duly given when transmitted by
telex or facsimile, personally delivered or, in the
case of a mailed notice, upon receipt, in each case,
given or addressed as aforesaid.
4.2 AMENDMENTS
Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be
waived, amended or modified only by an instrument in
writing duly executed by the party against whom
enforcement is or will be sought.
4.3 SUCCESSORS AND ASSIGNS
(a) The Borrower may neither assign its rights
nor delegate its duties under this Agreement
without obtaining the Lender's prior written
consent. The Lender may assign all of its
rights and delegate its duties under this
Agreement to any affiliate or to any other
person.
(b) Any reference in this Agreement to a person
shall include such person's successors and
permitted assigns. This Agreement shall be
binding upon and inure to the benefit of the
parties hereto and their respective
successors and assigns.
4.4 EFFECTIVENESS
This Agreement shall become effective on the date
first above written.
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4.5 COMPLETE AGREEMENT
This Agreement, together with the exhibits and
schedules to this Agreement, is intended by the
parties as a final expression of their agreement
regarding the subject matter hereof and is intended
as a complete statement of the terms and conditions
of such agreement and merges and supersedes all
prior discussions, agreements and understandings of
every kind and nature among them as to the subject
matter hereof.
4.6 ENFORCEABILITY
The enforceability or invalidity of any provision or
provisions of this Agreement does not render any
other provision or provisions of this Agreement
unenforceable or invalid, and in lieu of each such
illegal, invalid or unenforceable provision there
shall be added automatically as a part of this
Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may
be possible, which provision shall be legal, valid
and enforceable.
4.7 FURTHER ASSURANCES
The parties shall do all acts and things (including
the executing of additional agreements, instruments
and documents) as are required to give effect to
this Agreement (and do nothing to jeopardize the
same).
4.8 COUNTERPARTS
This Agreement may be executed in any number of
counterparts with each party executing different
counterparts, each of which, when executed, shall
constitute an original and all of which together
shall constitute one instrument.
4.9 SUBORDINATION
(a) Subject to Section 4.9(b) below and
notwithstanding any provision of this
Agreement to the contrary, the payment by the
Borrower of any assets or securities
including Common Stock to repay or redeem
liabilities, obligations and indebtedness
under, pursuant to, or evidenced by this
Agreement is hereby subordinated in right of
payment upon a bankruptcy or reorganisation
of the Borrower to the prior payment in full
of the Securities. For the purposes of this
Section 4.9, the terms "COMMON STOCK" and
"SECURITIES" shall have the meanings ascribed
to them in that certain Indenture dated July
14th, 1998 between @Entertainment, Inc. (as
the Borrower was formerly known) and Bankers
Trust Company as trustee for the $252,000,000
aggregate principal amount at maturity
14 1/2% Senior Discount Notes due 2008 and
for the 14 1/2% Series B Senior Discount
Notes due 2008.
(b) For so long as any amounts are outstanding
under the Qualified Loan Agreement between
Belmarken Holding B.V. as lender and
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the Borrower as borrower dated ________,
2001 (the "QUALIFIED LOAN") and
notwithstanding any provision of this
Agreement to the contrary, the payment by
the Borrower of any assets or securities
including Common Stock to repay or redeem
liabilities, obligations and indebtedness
under, pursuant to, or evidenced by this
Agreement is hereby subordinated in right of
payment upon liquidation of the Borrower to
the prior payment in full of any and all
amounts outstanding under the Qualified
Loan.
4.10 GOVERNING LAW
This Agreement shall be governed and construed in
accordance with the laws of The Netherlands. Any and all
disputes related to this Agreement and/or any agreements
arising out of this Agreement shall be submitted to the
exclusive jurisdiction of the competent court in
Amsterdam, The Netherlands.
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APPENDIX I to the Subordinated Master (Loan) Agreement between THE LENDER
and THE BORROWER
This Appendix evidences loans made to the Borrower under the
within-described Subordinated Master (Loan) Agreement, on the dates and in
the principal amounts set forth below and subject to the Lending Rates and
to the payments and the payments of principal set forth below.
DATE OUTSTANDING PRINCIPAL AMOUNT AMOUNT PAID OR PREPAID
---- ---------------------------- ----------------------
31-12-1999 150,000,000
LENDING RATE APPLICABLE PERIOD
------------ -----------------
9.75% 14.10.99-31.12.00
11.00% 01.01.01-
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IN WITNESS WHEREOF, the parties hereto cause this Agreement to be duly executed
on the ____ day of _____________, 2001.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ TON TUIJTEN By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: Ton Tuijten Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director Title: Director
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇
The Netherlands
UPC POLSKA, INC.
By: ______________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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